Judgment of 14 January 2025

R e a s o n s :

A.

1

The constitutional complaint, which in the case at hand is directed against decisions of the ordinary courts, concerns fees charged for policing services provided in the context of football matches of the Bundesliga that were classified as involving particular dangers; the fees are based on a Land fee regulation adopted in 2014 in Bremen.

I.

2

1. In the Free Hanseatic City of Bremen, the political will has long sought to partly shift the costs of providing policing services arising in the context of Bundesliga matches to their direct economic beneficiaries – at least in the case of so-called high-risk football matches, i.e. those that require a heightened police presence. After endeavours initiated in 2009 to solve this issue on a federal level failed, in 2013, the Bremen Parliament (Bremische Bürgerschaft) requested the Bremen Senate to determine whether, how and by which criteria the cost of police operations could be (partly) shifted to organisers of large-scale, for-profit events on the basis of Land law. It further requested the Senate to take all necessary steps to change the existing law accordingly (cf. Bremen Parliament document, Bremische Bürgerschaft, Drucksache – Drucks 18/1201, p. 1).

3

Subsequently, the Bremen legislator passed legislation to provide a specific legal basis to impose a fee for additional policing services on organisers of for-profit events with more than 5,000 participants that could be expected to involve violent behaviour from within the group of participants (Bremen Law Gazette, Bremisches Gesetzblatt – Brem.GBl. p. 457 and 547 <correction>; Bremen Parliament Drucks 18/1591, p. 1, 3). § 4(4) of the Bremen Fees and Contributions Act of 16 July 1979 (Bremisches Gebühren- und Beitragsgesetz – BremGebBeitrG, Brem.GBl. p. 279) as amended by the Act Amending the Bremen Fees and Contributions Act of 4 November 2014 (Gesetz zur Änderung des Bremischen Gebühren- und Beitragsgesetzes, Brem.GBl. p. 457 – since unchanged –) reads as follows:

§ 4 Bremen Fees and Contributions Act – Administrative Fees

[...]

4

(4) ¹A fee is levied against organisers of for-profit events at which the simultaneous participation of more than 5,000 persons is anticipated and the provision of additional policing services is foreseeably necessary due to an expectation based on past experience that violent acts will be committed prior to, during or after the event, at the event venue, at the routes to and from the venue or otherwise in the vicinity of the event. ²The fee is calculated based on the additional expenditure arising from the provision of additional police forces. ³The organiser must be notified of the expected obligation to pay fees prior to the event. ⁴The fee can be calculated based on the actual additional costs or as a flat fee.

5

[...]

6

2. The complainant is a wholly-owned subsidiary of DFL Deutsche Fußball Liga e.V. (DFL e.V.), headquartered in Germany. DFL e.V. is a member of Deutscher Fußball-Bund e.V. (DFB), from which it has been given the responsibility to organise and operate the Bundesliga and Bundesliga 2. DFL e.V. has transferred its operative business to the complainant, which is, inter alia, responsible for organising and conducting the matches of professional football in Germany. Thus, the complainant decides the time and place of the matches of the Bundesliga and Bundesliga 2. This was also the case during the Bundesliga’s 2014/2015 season.

7

3. a) In light of the complainant’s plans to hold a Bundesliga match between the football clubs SV Werder Bremen and Hamburger SV at the Weserstadion in Bremen on 19 April 2015, the Bremen police, by letter dated 24 March 2015, notified the complainant of its expected obligation to pay a fee as an organiser in accordance with § 4(4) of the Bremen Fees and Contributions Act, which entered into force in November 2014. The police informed the complainant that according to the findings and information available to it at the time, violent clashes between fans of SV Werder Bremen and Hamburger SV were in all probability to be expected on match day unless this was countered by a strong police presence and effective police measures. The complainant was further notified that based on the knowledge available at the time of the notification, the deployment of approximately 800 police officers, and consequently a fee of between EUR 250,000 and 300,000, was to be expected. The police reserved the right to make changes to the estimate of the number of forces necessary based on developments in the situation and the availability of forces.

8

According to leading police officers, the police operation on the day of the match, in which the Bremen police were supported by forces from Schleswig-Holstein, Hamburg, Hesse and from the Federal Police, generally went smoothly. 969 police officers were deployed. A number of police measures were ordered on the day of the match, including taking 90 persons into custody and the issuance of exclusion orders for the entire city of Bremen against approximately 150 persons.

9

On 18 August 2015, the Bremen police issued a notice to the complainant as organiser of the Bundesliga match of SV Werder Bremen against Hamburger SV on 19 April 2015, demanding the payment of a fee in the amount of EUR 425,718.11 for the necessary deployment of additional police forces. The order was based on § 4(4) of the Bremen Fees and Contributions Act in conjunction with No. 120.60 former version of the appendix to § 1 of the Cost Ordinance for the Internal Administration (Kostenverordnung für die Innere Verwaltung – InKostV) and No. 103.00 of the Appendix to § 1 of the General Cost Ordinance (Allgemeine Kostenverordnung – AllKostV). Execution of the fee demand was suspended in accordance with § 80(4) second sentence of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung – VwGO).

10

After an unsuccessful objection against this fee notice, the complainant instituted legal action. By judgment of 17 May 2017, the Administrative Court (Verwaltungsgericht) suspended the fee notice as embodied in the ruling on the objection, citing the inadequacy of the statutory cost provision.

11

b) Following an appeal on points of fact and law (Berufung) by the Free Hanseatic City of Bremen, the Higher Administrative Court (Oberwaltungsgericht), by judgment of 21 February 2018, which is challenged in this constitutional complaint, reversed the judgment of the Administrative Court and rejected the complainant’s action to the extent that the parties had not unanimously withdrawn the matter from consideration by the court following a reduction in the amount of fees claimed by the Free Hanseatic City of Bremen to approximately EUR 415,000. It held that the provision on fees in § 4(4) first and second sentence of the Bremen Fees and Contributions Act was constitutional; additionally, it held that the fee levied was not objectionable as to its merits or its amount.

12

c) During the oral hearing on the appeal on points of law before the Federal Administrative Court (Bundesverwaltungsgericht), the Free Hanseatic City of Bremen reduced its demand to approximately EUR 401,000. To the extent that the Free and Hanseatic City of Bremen maintained its claim and the matter was still contentious between the parties, the Federal Administrative Court, by judgment of 29 March 2019, also challenged in the constitutional complaint, reversed the judgement of the Higher Administrative Court and remanded the case to the Higher Administrative Court for rehearing and a new decision. For the most part, however, the Federal Administrative Court affirmed the Higher Administrative Court’s legal view with regard to the matter.

13-19

[...]

20

d) On rehearing, the Higher Administrative Court, by judgment of 11 November 2020, likewise challenged in the present proceedings, again reversed the decision of the Administrative Court and rejected the complainant’s action to the extent that the parties had not unanimously withdrawn the matter from consideration by the court following a further reduction of the claimed fee to approximately EUR 386,000.

21

[...]

22

e) By order of 21 December 2021, which is also challenged in the present proceedings, the Federal Administrative Court rejected the complainant’s objection against the refusal to grant leave to appeal on points of law which the Higher Administrative Court had denied in its judgment of 11 November 2020. [...]

23

4. The fee notice at issue in the initial proceedings was the first issued after the entry into force of § 4(4) of the Bremen Fees and Contributions Act; additional fee notices followed, averaging one notice per season and EUR 334,000 per notice. In each case, the complainant sought redress from SV Werder Bremen. According to SV Werder Bremen, the claims amount to approximately 25% of the profits generated by the high-risk matches in question. Within the organisational structure of professional football, the complainant is responsible for relocating football matches due to security reasons, while the individual football clubs are responsible for the security measures inside the stadium. As illustrated during the oral hearing, the 2022/2023 football season saw a total of 612 matches in the Bundesliga and Bundesliga 2 nationwide, of which 52 were classified as ‘red games’, i.e. high-risk matches. With reference to the annual report for the football season 2022/2023 of the Joint Information Centre for Deployments at Sporting Events (Zentrale Informationsstelle Sporteinsätze – ZIS), it was pointed out that the local hot spots of criminal acts committed in connection with the respective matches were in and around the stadium itself and in the train stations ([...]). It was further pointed out that the number of police officers necessary had increased compared to previous years ([...]).

II.

24

In its constitutional complaint, which was filed following the decision of the Federal Administrative Court on the appeal on points of law of 29 March 2019 and which has been amended twice, the complainant asserts that the four challenged court decisions violate its fundamental rights under Art. 2(1), Art. 3(1), Art. 12(1), Art. 14(1) and Art. 19(4) first sentence of the Basic Law (Grundgesetz – GG). Primarily, the complainant seeks the fee provision itself to be declared unconstitutional.

25-31

[...]

III.

32

1. The Senate of the Free Hanseatic City of Bremen has joined the proceedings in accordance with § 94(5) first sentence of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) and has submitted a statement. [...]

33

2. a) The opportunity to submit a statement in the constitutional complaint proceedings was made use of by the Taxpayers Association (Bund der Steuerzahler e.V.), the German Federal Bar (Bundesrechtsanwaltskammer), the German Bar Association (Deutscher Anwaltverein e.V.), the German Police Union (Deutsche Polizeigewerkschaft), the German Olympic Sports Confederation (Deutscher Olympischer Sportbund e.V.) and the Union of the German Police (Gewerkschaft der Polizei). The Bremen Parliament, the Bundestag, the Bundesrat and the Federal Government, the Federal Association of the Event Industry (fwd: Bundesvereinigung Veranstaltungswirtschaft e.V.) and the Federal Association of the Concert and Event Industry (BDKV Bundesverband der Konzert- und Veranstaltungswirtschaft e.V.) did not submit statements.

34

b) [...]

IV.

35

The Federal Constitutional Court held an oral hearing on 25 April 2024. In addition to hearing from the complainant and the Senate of the Free Hanseatic City of Bremen, which joined the proceedings, the German Federal Bar, the German Bar Association, the German Police Union, the Union of the German Police, the German Olympic Sports Confederation and the SV Werder Bremen GmbH & Co. KGaA were also heard as expert third parties.

B.

36

The constitutional complaint is admissible to the extent that the complainant alleges a violation of Art. 12(1) and Art. 3(1) of the Basic Law, directly challenges the judgment of the Higher Administrative Court of 11 November 2020 and the judgment of the Federal Administrative Court of 29 March 2019 and indirectly challenges § 4(4) of the Bremen Fees and Contributions Act. The remainder of the constitutional complaint is inadmissible, in particular because the reasons provided do not meet the standard required under § 23(1) second sentence and § 92 of the Federal Constitutional Court Act.

I.

37

[...]

II.

38-51

[...]

C.

52

To the extent that the constitutional complaint is admissible, it is unfounded. § 4(4) of the Bremen Fees and Contributions Act, which forms the legal basis for the admissibly challenged decisions and which is itself challenged indirectly, does not violate either the freedom of occupation under Art. 12(1) of the Basic Law (see I. below) or the principle of equality under Art. 3(1) of the Basic Law (see II. below); the constitutional review of the provision in the present proceedings only extends to its scope of application with regard to high-risk football matches in the Bundesliga. The interpretation and application of the provision do also not give rise to a violation of the Basic Law (see III. below).

I.

53

§ 4(4) of the Bremen Fees and Contributions Act does not violate Art. 12(1) of the Basic Law. While the provision interferes with the occupational freedom of organisers protected under Art. 12(1) of the Basic Law (see 1. below), the interference is justified under constitutional law as the provision is constitutional in both formal (see 2. below) and substantive terms; it conforms with both the principle of proportionality and the principle of specificity (see 3. below).

54

1. a) Art. 12(1) of the Basic Law guarantees a comprehensive fundamental right to occupational freedom (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 7, 377 <402>; 95, 193 <214>; established case-law). Occupational freedom grants the right to freely choose and practice one’s occupation. An occupation in this sense means any activity pursued on a long-term basis to create and maintain a livelihood; the protection of occupational freedom is not limited to traditionally or legally defined professions or lawful activities (cf. BVerfGE 111, 10 <28>; 163, 107 <133 para. 71> – Veterinary prescription requirement). Pursuant to Art. 19(3) of the Basic Law, legal persons may also be holders of fundamental rights.

55

Obligations to pay interfere with the scope of protection guaranteed by Art. 12(1) of the Basic Law if they are closely related to the exercise of an occupation and objectively have an inherent regulatory effect (cf. BVerfGE 98, 83 <97>; 113, 128 <145>; 124, 235 <242>; 161, 63 <89 para. 43> – Wind farm participatory companies; BVerfGE 162, 325 <346 para. 79> – Interest on nuclear fuel tax). This can be assumed if the obligations to pay have a specific influence on the occupational activity and lead to a change in the framework in which the practice of the occupation occurs (regarding levies, cf. BVerfGE 95, 267 <302>; 98, 218 <258>; 111, 191 <213 f.>; 113, 128 <145>; 161, 63 <90 para. 47>; established case-law).

56

b) § 4(4) of the Bremen Fees and Contributions Act interferes with the freedom of occupation guaranteed under Art. 12(1) of the Basic Law. Organising football matches of the Bundesliga is an occupational activity because the organisers exercise it permanently and on a for-profit basis. The obligation to pay a fee for high-risk football matches under § 4(4) of the Bremen Fees and Contributions Act is linked to a specific aspect of this activity; it raises the financial burden for exercising the occupational activity considerably and thereby exerts a specific influence on it.

57

2. An interference with occupational freedom will only satisfy the requirements of the limitation clause in Art. 12(1) second sentence of the Basic Law if the statutory provision authorising such interference is compatible with the Basic Law in formal terms. The adoption of § 4(4) of the Bremen Fees and Contributions Act, a provision of Land law, was constitutional in formal terms; in particular, the Land – the Free Hanseatic City of Bremen – has legislative competence under Art. 70 of the Basic Law.

58

Depending on the type of levy (see a) below), namely, whether it is a tax (see aa) below) or another kind of levy, for example a fee (see bb) below), the legal basis of the legislative competence follows either from Art. 105 of the Basic Law or from Arts. 70 ff. of the Basic Law. Because the obligation to pay pursuant to § 4(4) of the Bremen Fees and Contributions Act qualifies as a fee in the field of general police law, the Free Hanseatic City of Bremen has the legislative competence for levying fees for events under Art. 70(1) of the Basic Law (see b) below).

59

a) Unlike for taxes, for which the legislative competence is laid down in Arts. 105 ff. of the Basic Law, the competence to impose non-tax levies is included in the competence for the respective subject matter (cf. BVerfGE 137, 1 <19 para. 45>; established case-law). The Länder are competent to legislate the subject matter relevant here, i.e. general police law, including the law regarding policing costs (Art. 70(1) of the Basic Law) (cf. most recently BVerfGE 165, 1 <87 f. para. 167> – Police powers under the Security and Public Order Act for Mecklenburg-Western Pomerania).

60

aa) There is no legal definition of the term ‘tax’ in the Basic Law. The Federal Constitutional Court has assumed from the outset that the term ‘tax’ in the Basic Law is based on the definition set out in § 3(1) of the Fiscal Code (Abgabenordnung – AO) (cf. BVerfGE 67, 256 <282>; 93, 319 <346>; 149, 222 <249 para. 53>). According to that definition, taxes are ‘payments of money, other than payments made in consideration of the performance of a particular activity, which are collected by a public body for the purpose of raising revenue and imposed by the body on all persons to whom the characteristics apply on which the law bases liability for payment’. It is thus a defining feature of a tax that it is levied in order to raise funds for the general financial needs of public bodies without individual consideration for particular services and independent of a specified purpose (cf. BVerfGE 108, 186 <215 f.>; 137, 1 <17 para. 41>; 149, 222 <249 para. 53>). The amount of the tax is not limited by the state functions it finances (cf. BVerfGE 43, 108 <118 ff.>; 61, 319 <344 ff.>; 66, 214 <222 ff.>; 82, 60 <86>).

61

bb) By contrast, fees and contributions are levies that compensate a benefit (Vorzugslasten) (cf. BVerfGE 110, 370 <388>; 137, 1 <17 f. para. 42>); together with other levies, they are categorised as non-tax levies (cf. BVerfGE 149, 222 <249 para. 54>). While the Basic Law uses the term ‘Gebühr’, or ‘fee’ (Art. 74(1) no. 22 [translated in English as toll], Art. 80(2) of the Basic Law [translated in English as fee]), it does not contain its own definition for the term (cf. BVerfGE 50, 217 <225 f.>; 137, 1 <18 para. 43>). Under constitutional law, however, fees, as levies that compensate a benefit, and taxes are distinguished from each other by certain features (cf. BVerfGE 137, 1 <18 para. 43>). Fees are payments under public law, imposed on entities or persons by way of a public law provision or another act of state authority for services rendered that are attributable to these entities or persons (cf. BVerfGE 149, 222 <250 para. 55>); in particular, they are designed to cover the costs of these services, either entirely or in part, or to obtain compensation for the benefits entailed by the services (cf. BVerfGE 93, 319 <347>) or their value (cf. BVerfGE 50, 217 <226>; 85, 337 <346>; 91, 207 <223>; 92, 91 <115>; 93, 319 <347>; 110, 370 <388>; 132, 334 <349 para. 49>; 137, 1 <18 para. 43>). A public service may manifest in any form of service provided by the state (regarding the different types of service, cf. Federal Constitutional Court, Order of the Third Chamber of the Second Senate of 6 July 2004 - 2 BvR 206/04 -, para. 8); examples of such services may be the re-registration of university students (cf. BVerfGE 108, 1 <13>) or the provision of port facilities for the benefit of ship owners (cf. BVerfGE 91, 207 <224>). There is no need for public services that are subject to a fee to differ in nature from public services that are not subject to a fee. Thus, it is established procedure in ordinary law to determine the limit of public use that is not subject to a fee at the point where public resources are used excessively (cf. e.g. § 46(1) Federal Water Act (Wasserhaushaltsgesetz – WHG) and § 29(2) Road Traffic Ordinance (Straßenverkehrsordnung – StVO)). Such excessive use of public resources may constitute a specific service which is relevant for the applicable concept of fees (in this regard cf. Federal Constitutional Court, Order of the First Chamber of the First Senate of 11 August 1993 - 1 BvR 1270/94 -, para. 20).

62

b) Accordingly, in enacting § 4(4) of the Bremen Fees and Contributions Act, the Free Hanseatic City of Bremen could rely on Art. 70(1) of the Basic Law. The payment obligation arising from § 4(4) of the Bremen Fees and Contributions Act constitutes a non-tax levy in the form of a fee, because it imposes the costs (i.e. the additional expenditure) for the provision of additional police forces, a public service, on the organisers. The additional expenditure equates to the total costs incurred because of the high-risk event less those that would have been incurred for comparable low-risk events; it is based on specific, sometimes extensive organisational and operational investigations and measures by the Land Contrary to the complainant’s contentions, the additional expenditure is not merely a cost item. The additional expenditure differs – at least quantitatively – from the expenditures incurred by the Land police on days on which low-risk events take place. Whether or not the fee is permissible under constitutional law, in particular because the attributability assumed by the legislator does indeed exist (cf. para. 87 ff. below), is irrelevant for the question of whether Art. 70(1) of the Basic Law can serve as a legal basis for the legislative competence (cf. BVerfGE 123, 1 <17>; 149, 222 <250 f. para. 57>).

63

3. § 4(4) of the Bremen Fees and Contributions Act is also constitutional in substantive terms. The provision, which constitutes a rule with an inherent regulatory effect on the practice of an occupation (Berufsausübungsregelung) within the meaning of Art. 12(1) second sentence of the Basic Law, satisfies the proportionality requirements. The provision serves legitimate purposes of the common good (see a) below), constitutes a suitable means for achieving these legitimate purposes (see b) below) and is necessary (see c) below) and appropriate (see d) below) to do so; it also satisfies the requirements arising from the principle of specificity (see e) below).

64

a) § 4(4) of the Bremen Fees and Contributions Act serves constitutionally legitimate purposes.

65

aa) Where statutory provisions result in interference with fundamental rights, such interference is only justified if the legislator is pursuing constitutionally legitimate purposes (cf. BVerfGE 100, 313 <359>; 115, 276 <304, 307>; 117, 163 <182>; 124, 300 <331>). It falls to the Federal Constitutional Court to review whether this is the case. In this respect, the Court is not limited to the purposes expressly identified by the legislator itself (cf. BVerfGE 151, 101 <136 para. 89> – Stepchild adoption; 167, 163 <212 f. para. 115> – Contergan II).

66

The imposition of a non-tax levy requires a purpose that goes beyond the mere generation of revenue for the state (cf. BVerfGE 55, 274 <303 f.>; 108, 1 <16>; 113, 128 <147>; 124, 235 <243 f.>; 149, 222 <254 para. 65>; 158, 282 <328 para. 113> – Interest on back taxes and tax refunds). Fees, as a manifestation of levies compensating a benefit, are not inherently objectionable (cf. BVerfGE 82, 159 <181>; 93, 319 <343 f.>; cf. further BVerfGE 149, 222 <249 para. 54> with further reference regarding levies compensating a benefit). In general, the imposition of such fees is justified by their compensatory function (cf. BVerfGE 108, 186 <216>; 132, 334 <349 para. 49>). They are based on the concept of compensation, i.e. the equalisation of benefits and burdens (cf. BVerfGE 9, 291 <298>; 91, 207 <223>; 144, 369 <400 para. 73>; see already supra para. 61).

67

bb) Measured against this standard, the aim pursued with § 4(4) of the Bremen Fees and Contributions Act is legitimate because the fee serves a generally accepted purpose (see (1) below); furthermore, the Constitution does not prohibit an imposition of fees in police law (see (2) below).

68

(1) As is evident from the provision itself and supported by the legislative materials, the legislator aims to use the fee to cover the costs incurred for the provision of a specific public service.

69

It is clear that the provision is aimed at passing on the additional costs incurred due to the police operations during the specified events to the organisers of such events in order to achieve an equalisation of burdens. This legislative purpose is also reflected by the legislative materials. The legislator – also in light of the budgetary situation of the Land Bremen – means to ensure that the policing costs incurred in connection with for-profit private events in public spaces, which have been continuously increasing for years, are not paid for by all taxpayers, but at least to some extent by the (in)direct economic beneficiaries of these police operations (cf. Bremen Parliament Drucks 18/1201, p. 1; 18/1591, p. 2 f.). In this way, § 4(4) of the Bremen Fees and Contributions Act aims to cover those costs of policing certain large-scale events that exceed a certain basic threshold and, thereby, to alleviate the burden on the budget. The aim is to shift the costs to the entity that earns the profits ([...]).

70

Based on these considerations, § 4(4) of the Bremen Fees and Contributions Act serves a legitimate purpose. The intention to use the fee to cover the costs for providing a specific public service and, at the same time, to achieve a fair distribution of costs constitutes an established purpose of the fee (cf. BVerfGE 108, 1 <18>) that does not serve the generation of revenue alone.

71

(2) The Constitution does not establish any general prohibition on charging fees in police law that might conflict with the legitimacy of the purpose pursued by § 4(4) of the Bremen Fees and Contributions Act. There is no general principle under constitutional law that police security measures must be provided free of charge in all cases. Contrary to the complainant’s submission, with citation to certain legal views in the scholarly literature ([...]), the provision of public security does not amount to a general state activity that must be financed exclusively from tax revenue in all cases.

72

There is no basis in the Basic Law to assume such a general exemption from fees (see (a) below). Neither the fulfilment of core tasks of the state (see (b) below) nor the duty of the state to act (see (c) below) give rise to such a general exemption. Furthermore, the existence of a subjective entitlement to the provision of a service does not extend to an entitlement to this service being provided free of charge (see (d) below).

73

(a) First, a sufficient legal basis for the assumption that a partial or total prohibition of charging fees exists with regard to the provision of public safety or the state’s monopoly on establishing and enforcing the law is not to be found in the Basic Law. Insofar as a prohibition on charging fees is considered possible under the wording of the Basic Law (with regard to Art. 8 of the Basic Law’s phrasing ‘without permission’ – cf. Chamber Decisions of the Federal Constitutional Court, Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK 12, 354 <358 f.>; with regard to Art. 38(1) first sentence of the Basic Law’s wording that the Bundestag is elected in ‘general’ and ‘free’ elections[...]), the reasons provided for such a prohibition are based on the respective fundamental rights and not the respective tasks involved. Conversely, the Basic Law provisions which specifically mention ‘Gebühren’ (Art. 74(1) no. 22 [translated in English as toll] and Art. 80(2) of the Basic Law [translated in English as fee]) or ‘Beiträge’ (contributions) (Art. 74(1) no. 18 of the Basic Law [translated in English as fee]) refer to those fields of tasks in which a positive obligation of the state to act – at a minimum under ordinary law – is established; examples of this are the provision of streets and roads and of infrastructure facilities. By contrast, a prohibition on charging fees related to any specific subject area cannot be found in the Basic Law ([...]).

74

(b) Even core tasks of the state do not necessarily need to be provided free of charge. In the area of the state’s monopoly on establishing and enforcing the law, too, no constitutional prohibition on charging fees is recognised. This is evidenced by court fees, whose permissibility under constitutional law is recognised (cf. BVerfGE 80, 103 <107>; 85, 337 <346>; 115, 381 <390>). Likewise, no constitutional prohibition on charging fees exists for services rendered with regard to the provision of public safety by the police.

75

(c) Existing constitutional duties of the state to act also do not give rise to an obligation of the state to finance the fulfilment of such duties from taxes and therefore a prohibition on imposing fees. Such is the case in the area of so-called preventive prohibitions, in which the state’s obligation to grant permission when the respective statutory prerequisites are fulfilled follows from fundamental freedoms, where the constitutional permissibility of charging fees is generally accepted (cf. with regard to the fee for granting licenses to keep certain breeds of dogs, Federal Constitutional Court, Order of the Second Chamber of the First Senate of 29 March 2004 - 1 BvR 1498/00 -, para. 2; with regard to construction permits, Order of the First Chamber of the First Senate of 2 September 2004 - 1 BvR 252/02 -, para. 3; with regard to permits under immission control law, Federal Constitutional Court, Order of the Third Chamber of the First Senate of 30 May 2018 - 1 BvR 45/15 -, para. 21).

76

(d) Even in fields in which the Constitution or ordinary law grant the individual an entitlement to certain guarantees from the state, this does not entail an entitlement to be exempted from fees in all cases. Neither the fundamental right to effective legal protection under Art. 19(4) first sentence of the Basic Law nor the right of access to justice guaranteed by Art. 2(1) in conjunction with Art. 20(3) of the Basic Law call into question the previously mentioned general permissibility of court fees (cf. BVerfGE 80, 103 <107>; 85, 337 <346>; 115, 381 <390>). It is also a matter of course that fees are permissibly charged for services of general interest. The duties to protect holders of fundamental rights that are included within the fundamental rights guarantees refer to all fundamental rights guarantees in general and not specifically to the provision of public security and order by the police. Even if a general entitlement to services free of charge was assumed, such an entitlement would not necessarily be without limit.

77

b) §4(4) of the Bremen Fees and Contributions Act is also suitable to achieve the objectives in the interest of the common good which it pursues. The suitability requirement under constitutional law is satisfied if there is a possibility of achieving the legislative objectives with the statutory provisions. A provision can only be found to be unsuitable if it cannot in any way further the legislative purpose pursued or if it counteracts this purpose (cf. BVerfGE 158, 282 <336 para. 131> with further references; 161, 63 <114 para. 110>).

78

§ 4(4) of the Bremen Fees and Contributions Act furthers the objective in the interest of the common good which it pursues. The fee imposed on event organisers is used to cover the cost of providing additional police services. This not only protects the general public from incurring these costs, but also serves to transfer them to the economic beneficiaries and the individuals causing them.

79

c) The obligation to pay fees under § 4(4) of the Bremen Fees and Contributions Act is also necessary to achieve the aim pursued. A statutory provision meets the element of necessity if there are no other equally effective means available that do not place a higher burden on third persons or the general public and are less or not at all restrictive of fundamental rights. In this regard, it must be clearly established that the alternative measures are equally effective for achieving the desired objective in every respect (cf. BVerfGE 155, 238 <280 para. 105> – Offshore Wind Energy Act; 161, 299 <378 para. 186 f.> – Proof of vaccination (COVID-19); 163, 107 <150 para. 115>; established case-law). Here, no less intrusive means available to the state, that would still allow for the general public not having to bear the additional costs, are discernible. Additional costs that are avoidable are deemed not necessary within the meaning of § 4(4) of the Bremen Fees and Contributions Act and therefore cannot permissibly be imposed on organisers in the first place.

80

d) § 4(4) of the Bremen Fees and Contributions Act also fulfils the requirements of appropriateness.

81

aa) For a measure to be appropriate and thus proportionate in the strict sense, the purpose pursued by a measure and its likelihood of achieving that purpose may not be disproportionate to the severity of the interference (cf. BVerfGE 155, 119 <178 para. 128> with further reference – Subscriber data II; established case-law). In balancing the intensity of the burden versus the weight and urgency of the reasons invoked to justify it, the limits of reasonableness must be observed (cf. BVerfGE 152, 68 <137 para. 183> with further reference – Sanctions imposed under social law; established case-law). The prohibition of excessive measures (Übermaßverbot) requires that the more the individual freedom is restricted, i.e. the more intrusive the interference with the affected fundamental right turns out to be (cf. BVerfGE 156, 63 <142 para. 271 ff.> – Electronic monitoring of persons released from prison), the weightier the pursued interest of the common good must be (BVerfGE 166, 1 <71 f. para. 155> – Child marriages). In doing so, the severity of interference, in qualitative terms, is determined by the extent to which the actions and legal positions protected by fundamental rights, including the associated economic consequences, are curtailed (with regard to the element of necessity, cf. BVerfGE 166, 1 <65 para. 144>).

82

bb) The purpose pursued by the fee under § 4(4) of the Bremen Fees and Contributions Act, i.e. recovering the excessive costs of having to deploy police forces in the course of particularly risky, for-profit, large-scale events in order to safeguard the general public from being burdened with these costs, is not disproportionate to the resulting interference with the occupational freedom of the organisers guaranteed by Art. 12(1) of the Basic Law. The interference with fundamental rights caused by Art. 4(4) of the Bremen Fees and Contributions Act is of considerable significance for the parties that are obliged to pay the fee (see (1) below); in the case at hand, the interference needs to be balanced against a considerable interest of the common good (see (2) below). It outweighs the interference (see (3) below).

83

(1) The obligation to pay fees laid down in § 4(4) of the Bremen Fees and Contributions Act constitutes an interference of considerable significance with the organiser’s freedom to practice an occupation (Art. 12(1) of the Basic Law). It is true that the fee may reach a substantial amount and thus place a considerable financial burden on the organisers. However, restricting the fee to for-profit events means that it is only charged for events that are intended to generate a profit. The fact that organisers have only limited control over circumstances that would subject them to the fee, as the risk posed by the event lies partly outside of their sphere of influence, increases the burden. The organisers are in any case unlikely to have control over what occurs in the area outside of the stadium. Nonetheless, it is the conduct of the organisers that gives rise to the fee being charged. It must also be taken into account that it is precisely the particularly highly-anticipated matches of the Bundesliga that are often high-risk matches. It was confirmed during the oral hearing that the matches in question are likely to be those held between rival football clubs that have the character of a derby. For such matches, the organisers benefit economically from the fact that large numbers of spectators want to watch them. The burden of the fee is increased by the fact that the amount of the fee charged has no relation to the profit generated by the event in question. The fee can therefore theoretically exceed the profit generated. Conversely, the burden on the exercise of one’s occupation caused by the obligation to pay is reduced by the fact that fees generally have a reciprocal character and are, in this specific case, embedded into general fee legislation which also includes the possibility of equity measures under § 25(1) of the Bremen Fees and Contributions Act.

84

(2) The burden of the obligation to pay fees must be balanced against the fee’s purpose, i.e. to at least partially transfer the cost of police operations for events to the economic beneficiaries and those individuals who occasion the need for the police operations. This constitutes the important interest of the common good to not burden the general public with the additional costs for providing extensive additional policing services during high-risk matches of the Bundesliga – costs that are caused by the organisers – but rather to impose those additional costs, which exceed the costs for policing services necessary during ‘normal’ Bundesliga matches, on those who intend to generate profits from events that are classed as involving particular dangers. A fair distribution of costs is of utmost importance for society and for social peace.

85

However, depending on the type of event, the weight of the public interest to not burden the general public with the costs for the provision of additional policing services may be lessened by the countervailing public interest in having the event take place. There is, for example, considerable public interest in having certain events subject to § 4(4) of the Bremen Fees and Contributions Act take place, particularly the football matches. This public interest can range from the participation in social life (cf. BVerfGE 148, 267 <283 f. para. 41 f.>) all the way to the considerable integration function which football serves. If the economic efficiency of holding such events, which serve the common good to a considerable extent, is seriously jeopardised by the fact that fees are charged for them, the public interest that exists for maintaining such events may outweigh the public interest that exists for relieving the general public of the additional costs due to the potential for violence occurring during these events and the associated necessity of deploying additional police forces. That said, in considering only the high-risk matches of the Bundesliga that are at issue here, there is no indication that this is the case.

86

(3) The purpose pursued with the fee charged for events, i.e. to not burden the general public with the above-average costs of having to deploy police forces in the course of risky, for-profit events, is not disproportionate to the resulting interference with the freedom of occupation of the organisers who are subject to the fee, which is guaranteed by Art. 12(1) of the Basic Law. The imposition of the fee is not rendered unreasonable as a result of an absence of a material compensation-character (see (a) below), nor is its design (see (b) below) unreasonable.

87

(a) A fee is only reasonable if it is in fact charged as compensation for a service that is attributable to the individual entities concerned (cf. BVerfGE 91, 207 <223>; cf. also BVerfGK 8, 285 <292 f.>; 12, 354 <358 f.> – with regard to Art. 8 of the Basic Law; generally also BVerfGE 80, 103 <106 f.>; BVerfGK 13, 551 <554>). Ultimately, it is not the designation, but the material content of a levy that is decisive for its lawfulness (cf. BVerfGE 55, 274 <305>; 67, 256 <276>; 92, 91 <114>; […]). Consequently, the normative criteria for imposing the fee must find its basis in reality ([...]). It is true that the legislator has a wide margin of appreciation and leeway to design when deciding which individually accountable public services it wants to subject to a fee (cf. BVerfGE 50, 217 <226 f.>; 91, 207 <223>; 97, 332 <345>; BVerfGK 2, 70 <73>; 13, 551 <554>; Federal Constitutional Court, Order of the First Chamber of the First Senate of 8 January 1997 - 1 BvR 424/94 -, para. 14; Order of the First Chamber of the First Senate of 15 April 2012 - 1 BvR 1951/11 -, para. 24; with regard to levies, Federal Constitutional Court, Order of the Second Chamber of the First Senate of 16 April 2020 - 1 BvR 173/16 -, para. 37). However, this leeway is exceeded in cases in which no specific link between the statutorily defined benefit and the individual subject to the levy is discernible (cf. BVerfGE 137, 1 <23 para. 54>; 149, 222 <255 f. para. 68>). It is therefore necessary that the fee under § 4(4) of the Bremen Fees and Contributions Act be based on a public service attributable to the individuals concerned both with regard to its merits (see (aa) below) and with regard to its amount (see (bb) below). This is the case here.

88

(aa) The prerequisites of individual attributability (see (α) below) are fulfilled in the present case (see (β) below). Particularly in the area of police law, the Constitution allows for fees to be charged to individuals even if they are not simultaneously responsible under police law (see (γ) below). Even if third parties are responsible under police law, this does not preclude those individuals who are not responsible under police law from being subjected to an obligation to pay a fee (see (δ) below).

89

(α) Not every aspect can qualify as a ground for attribution. Rather, the service for which the fee is charged must have a specific link to the responsibility of the person to whom the fee is charged; this responsibility must follow from the subject matter itself (cf. BVerfGE 91, 207 <223>; with regard to contributions, cf. BVerfGE 137, 1 <22 para. 52>). There must be an especially close link between the individuals subject to the fee and the public service for which it is charged; this link must justify demanding financial consideration from those individuals – even without a contractual basis and thus possibly against their will. The prerequisite of individual attributability does not require that the beneficiaries be limited in number (with regard to contributions, cf. BVerfGE 149, 222 <255 para. 67>). In particular, the individual and specific attributability may exist in cases in which the public service is associated with specific benefits, which may be conveyed by way of actual ownership (cf. BVerfGE 91, 207 <223 f.>; 137, 1 <22 para. 52>; 149, 222 <255 para. 67>), or be occasioned by a specific individual (cf. BVerfGE 108, 1 <13>), particularly if the case amounts to a ‘special use’ of public goods that includes an excessive use of limited public resources.

90

The criteria for attribution used in statutory fee law may serve as reference points for determining the extent to which an attribution is constitutionally permissible (cf. BVerfGK 8, 285 <293>); in this regard, the legislator may rely on one criterion or multiple criteria. Such criteria under statutory law are primarily linked to the ‘cause’ (cf. BVerfGE 108, 1 <13>) and the ‘benefit’ (cf. BVerfGE 91, 207 <223 f.>; 137, 1 <22 para. 52>; 149, 222 <255 para. 67>; […]). While the ‘cause’ establishes the attributability on the basis of the provision of a public service – the individuals subject to the fee have caused the need for the public service in an extraordinary way – attributability on the basis of ‘benefits’ refers to cases in which the public service benefits the individuals subject to the fee in an extraordinary way. The key aspect of the ‘perpetrator pays’ principle is the element of the causality of the behaviour of the individuals subject to the fee for the provision of the public service and thus for the incurrence of the costs (cf. with regard to § 465 Code of Criminal Procedure (Strafprozessordnung – StPO) BVerfGK 8, 285 <293>). In the case of ‘benefits’, the ‘advantage’ does not need to amount to measurable financial gain or measurable saved expenses. Even the mere use of state resources by a limited group of individuals may give rise to an obligation to pay a fee (cf. BVerfGE 134, 1 <14 para. 39>).

91

Individual attributability does not necessarily require that the individuals subject to the fee benefit from the public service provided. There is also no constitutional requirement that the service which is subject to the fee must have been applied for or otherwise wanted by the individuals who must pay for it. In this regard, actual use of the service is sufficient (cf. BVerfGE 108, 1 <26>) – such is the case for the obligation of convicted persons to pay the cost of the criminal proceedings (cf. BVerfGE 18, 302 <304>; 31, 137 <139>). Likewise, costs for the provision of a public service may be charged to those who occasioned them even through no fault of their own (cf. with regard to § 465 Code of Criminal Procedure, BVerfGK 8, 285 <293 f.>).

92

(β) A sufficiently close link exists between the additional expenditure within the meaning of § 4(4) of the Bremen Fees and Contributions Act and the organisers of the events subject to the provision; this close link justifies the existing specific obligation to pay for the additional expenditure. Organisers of large-scale events within the scope of application of § 4(4) of the Bremen Fees and Contributions Act are closer to the additional expenditure required for such events than is the general public. This attribution is justified by an overall assessment of several aspects which can mainly be ascribed to the ‘perpetrator pays’ principle.

93

In the case of high-risk football matches of the Bundesliga, the additional expenditure for the police operations is occasioned by the organisers. Moreover, the additional expenditure is linked to the particular risk-level of the event (causation-aspect and special use-aspect) (see (αα) below). Furthermore, the organisers are the economic beneficiaries of the additional expenditure, because without such expenditure the events could not be held in the intended format (benefit-aspect) (see (ββ) below).

94

(αα) Although the organisers may not necessarily be persons who provide the circumstances for an endangerment or disturbance to be caused by a third party within the meaning of police law (Zweckveranlasser) (cf. Bremen Parliament, Drucks 18/1501, p. 9 f.), by organising events at which substantial violent incidents are to be expected (high-risk events), they prompt the state to provide significantly greater public security measures; they thereby make excessive use of limited public resources, thus establishing a link to the public service provided. The public service, namely, the provision of additional police services, would not be necessary if the high-risk event did not take place. Thus, the high-risk event is causal for the additional cost of the police operation, as without the event there would be no occasion for thousands of people, including those individuals who are likely to perform violent acts and who (could) disturb public security, to travel to and meet at the place of the match. Nor does the fact that high-risk events do not constitute an illegal activity and that the organisers themselves do not request the provision of additional police services eliminate the chain of causality or interrupt it. The dangers caused are not limited to those that arise within the stadium, but also include all dangers that arise from encounters among spectators and persons who happen to be in the vicinity of the stadium and on the access routes.

95

Events with a heightened potential for violence pose a higher logistical challenge for the police. In order to prevent violent acts, a higher police presence is necessary for the protection of public security. The state is not at liberty to simply refrain from deploying police forces. If the state were to allow such a situation to unfold without taking the necessary precautions, it would have to take other far-reaching emergency measures for danger prevention at short notice which might lead to a disproportionate interference with fundamental rights. For example, the police might have to decide to prevent entire groups of people from reaching the event venue, prohibit holding the event in its entirety (which would constitute a measure against individuals not responsible for the danger), allow the event to be held only without spectators or impose other significant restrictions on the high-risk event for security reasons.

96

From an evaluative perspective, too, there is a link between the expenditure and the cause. The requirement of individual attributability would lose its limiting function if any kind of causality would be sufficient to fulfil it (cf. expressly with regard to Art. 8 of the Basic Law BVerfGK 12, 354 <360>; cf. in connection with the ‘perpetrator pays’ principle BVerfGK 8, 285 <294>). In the present case, the link to the additional expenditure subject to the fee also follows from the extensive costs, which are clearly caused by the event and not by the general public. The element of the particular risk posed by such events and the profits generated by them are also linked by virtue of the anticipation for such events, which is known to and welcomed by the organisers.

97

The public security situation in a city that hosts a high-risk match differs from the normal situation in such a way that, from an evaluative perspective, the legislator’s assessment that this amounts to a quantitatively greater use of the provision of public security for a special purpose is sufficiently plausible. This is true when comparing these events to large-scale events which lack the particular riskiness required by § 4(4) of the Bremen Fees and Contributions Act. It also holds in comparison to other police measures. The high-risk match that is the subject of this constitutional complaint required the deployment of multiple times the number of police officers normally necessary at matches that are not high-risk.

98

Furthermore, the particular proximity with the additional provision of police forces that give rise to the costs also exists because the organisation of a high-risk event entails an element of particular risk and thereby makes excessive use of limited public resources. This exceptional situation of risk caused by the event is partly due to the very nature of the event. For high-risk football matches in particular, the need to provide additional police forces is plausible because of the particular dangers involved, a finding which is based on many years of experience ([…]). The event is characterised by its socially acceptable competitive atmosphere with two opposing sides – the home and the guest team. The competition takes place as part of a league which gives the specific event a larger context and further increases its competitive atmosphere. The events are further accompanied by high-spirited celebrations and often also by a consumption of alcohol, which can lower inhibitions and lead to dangerous behaviour. In addition, organised fan structures and traditional rivalries can lead to potential acts of violence between rival fan groups. Experience shows that matches of the Bundesliga that are classified as high-risk lead to injury of the rights and property of the event participants and third persons, which would not have occurred but for the football match.

99

(ββ) The measures of the state covered by § 4(4) of the Bremen Fees and Contributions Act also have a specific link to the events identified in the provision because such events could not take place without those measures. At the same time, the organisers are objective beneficiaries of the provision of police officers, despite not having applied for or requested the measures. The risk mitigation brought about by such measures benefits the organisers, as they could not hold their events, at least not in the chosen format, without it. The organisers do not host a standalone event; rather, each match is part of a series of events spread throughout the year which, according to the rules of the league, lead to an overall ranking of the teams. Due to the contractual obligations involved in the Bundesliga, particularly the granting of broadcasting rights, the organisers are especially reliant on all matches taking place, irrespective of the specific level of risk involved with individual matches.

100

Providing additional police forces helps ensure that all paying spectators can reach and leave the stadium unharmed. Traffic is routed to and, after the match, from the stadium in an orderly manner. The provision of traffic and crowd control as well as of contact persons and other measures are advantageous to the organisers. This allows for the large numbers of people, which at this scale would overwhelm normal traffic, to reach their destination; it also reduces other potential dangers. The provision of police services makes the large-scale event possible and reduces the risk of the event descending into chaos. Given the extent and the gravity of the possible damage caused by such events, they might not be permissible without some form of risk management.

101

(γ) Individual attribution also does not require that the organisers be responsible under police law. Contrary to one opinion in legal scholarship ([...]), there is no provision in the Constitution that requires the state to impose policing costs only on those individuals causing a disturbance, or on persons who, based on police law, can be held accountable in lieu of such individuals or on individuals who are behaving unlawfully (cf. already Higher Administrative Court of Baden-Wuerttemberg (VGH Baden-Württemberg), Judgment of 18 June 1979 - I 47/79 -, juris, para. 27; see also Federal Constitutional Court, Order of the First Chamber of the First Senate of 11 August 1998 - 1 BvR 1270/94 -, para. 19 ff. [...]). The individual attributability of a service, for instance, if a specific cause for the service exists, does not require the cause to be illegitimate. The liability under police law for certain behaviour or its lawfulness concern different issues than the liability for costs. The absence of a requirement for parallelism between liability under police law (or obligations or prohibitions to act in a certain way) and liability for costs under public fee law already follows from the different aims pursued with these tools; it also follows from the different burdens on the affected individuals, which entail different fundamental rights considerations.

102

(δ) If the additional expenditure is attributable to the organisers under public fee law, this attributability is not affected by the fact that, depending on the circumstances, the additional expenditure may be based on a possibly unlawful action by a third party who is responsible for such action. Regardless of the question of the extent to which costs caused by specific individuals may be part of the fee charged for the event, which is not relevant in the present case (cf. supra para. 45), a deliberate action by a third party does not necessarily interrupt the chain of attribution for the additional expenditure, certainly not when the event is held with the knowledge that it might involve particular risks. The increase in public security measures prompted by large-scale events that involve risks can be attributed to the organisers even though it is the behaviour of third parties that determines whether the risks come to fruition. Quite apart from the fact that the dangers that develop in connection with high-risk events do not necessarily have to be legally attributable to third parties, the fact remains that the public service of providing additional police forces serves to enable such high-risk events in the first place.

103

(bb) The calculation of the fees under § 4(4) of the Bremen Fees and Contributions Act also does not exceed the limits set by the necessity of individual attributability.

104

The possible amount of a fee in the form of a levy compensating a benefit is limited by the constitutional requirements for justifying the interference with fundamental rights that results from the obligation to pay fees (cf. BVerfGE 85, 337 <346>; 97, 332 <345>; BVerfGK 3, 310 <312 f.>). The burden caused by the amount of the fee must meet the requirements for substantive justification. It must be based on the benefit conveyed by the provision of the public service for which the fee provides financial compensation, or by the possibility of use of the public service which is paid for by the contribution (cf. BVerfGE 137, 1 <21 f. para. 51 f.>; 149, 222 <254 f. para. 66>). The link between the costs and the additional expenditure established through the constituent elements of § 4(4) of the Bremen Fees and Contributions Act, and its necessity for the imposition of the fee ensures that it is limited to the expenditure caused and the relevant benefit conveyed.

105

Contrary to the view taken by the complainant, the legislator is not required to provide for a reduction of the fee on grounds of public interest, because the relevant additional expenditure is caused solely by holding the for-profit event despite the expectation of violence (cf. in this regard already the decision of the Federal Administrative Court challenged in the present proceedings, Judgment of 29 March 2019 – BVerwGE 165, 138 <157 ff. para. 76 ff.>). Moreover, in the model chosen by the Bremen legislator, the base costs for the police services are borne by the general public from general budgetary funds. Thus, the general public interest in matches of the Bundesliga is financed by the state.

106

(b) The fees imposed on event organisers in Bremen also do not result in an inappropriate impairment of their occupational freedom when considered in an overall assessment.

107

In order to comply with the principle of proportionality in the strict sense, provisions regulating fees may not unreasonably restrict the exercise of fundamental freedoms. This would be the case if the fee would discourage the exercise of fundamental freedoms, make their exercise unreasonably more difficult or have a debilitating effect in another way (with regard to court fees and the right of access to justice, cf. BVerfGE 85, 337 <347>; with regard to the right to participation following from Art. 12 of the Basic Law, cf. BVerfGE 134, 1 <17 para. 48>; with regard to Art. 8 of the Basic Law, cf. BVerfGK 12, 354 <360>), regardless of whether the fee itself and its amount are attributable to the individuals subject to the fee.

108

In this respect, § 4(4) of the Bremen Fees and Contributions Act is not unreasonable. In principle, the aims pursued by the fees – i.e. not imposing the costs of additional policing services for high-risk events on the general public, and instead imposing them on the organisers which have prompted the additional expenditure and intend to make a profit with the event – is not disproportionate to the impairments to occupational freedom following from the obligation to pay the fees. In particular, there is no evident imposition of inappropriate burdens or exertion of a debilitating effect by § 4(4) of the Bremen Fees and Contributions Act. It is not discernible that the fee would result in the hosting of for-profit, large-scale events, such as, in particular, the organisation of the Bundesliga or the staging of football matches which are classed as high-risk matches, no longer being possible, or only possible in a different format. In assessing the financial burdens involved, it must also be taken into account that § 4(4) of the Bremen Fees and Contributions Act only concerns a small fraction of commercial events. It is irrelevant that the complainant has so far apparently passed on its costs to the respective football clubs (SV Werder Bremen in the present case). In particular, it is up to those in positions of responsibility to distribute the additional burden fairly among those affected. Finally, the proportionality of the fee in the individual case is also ensured by its integration into general fee law, as this integration results in equity measures under § 25(1) of the Bremen Fees and Contributions Act being available in atypical cases.

109

e) Further, § 4(4) of the Bremen Fees and Contributions Act satisfies the requirement of specificity and legal clarity.

110

aa) Provisions regulating fees must satisfy the principle of specificity and legal clarity, which follows from the rule of law enshrined in Art. 20(3) of the Basic Law. This principle requires, on the one hand, an effective limitation of the powers of public authorities, with guidelines for their actions, as well as the availability of effective judicial review (specificity) and, on the other, that interferences be foreseeable for citizens (legal clarity). The legislator must draft provisions as specifically and clearly as possible, taking into account the particular nature of the underlying subject matter and the purposes pursued (cf. BVerfGE 145, 20 <69 f. para. 125>; 149, 293 <323 para. 77>; established case-law). The required level of specificity cannot be determined beforehand in abstract and general terms but depends on the particular nature of the underlying subject matter and the legislative objective pursued (cf. BVerfGE 103, 111 <135>; 131, 316 <343>; each with further reference). In principle, the provision does not lack the necessary specificity and legal clarity simply because it requires interpretation (cf. BVerfGE 134, 141 <184 f. para. 127>; 149, 160 <203 para. 120>; 149, 293 <324 para. 78>; established case-law). Rather, the requirement of specificity is satisfied if problems of interpretation raised in the context of the specific provision can be overcome by applying established legal methodology (cf. BVerfGE 134, 141 <184 f. para. 127>; 149, 293 <324 para. 78>; established case-law).

111

With regard to public levies, there are no uniform general requirements pertaining to the specificity of laws. Here, too, the phrasing depends on the particularities of the underlying subject matter and the affected fundamental rights (cf. BVerfGE 108, 186 <235> with further reference). If the levy only leads to a minor burden, as is the case for municipal taxes yielding very little revenue in comparison to the total tax revenue of a local administrative body (Bagatellsteuern), then extensive requirements regarding the degree of regulation for such taxes are not required (cf. BVerfGE 48, 210 <222>; 56, 1 <13>; 161, 1 <32 para. 63>). Nevertheless, the general rule applies that all provisions regulating levies must be specific enough to allow the individuals subject to them – at least to a certain extent (cf. BVerfGE 13, 153 <160>) – to anticipate the amount of the levies that will be charged to them (with regard to special levies, cf. BVerfGE 34, 348 <365>; with regard to fees, cf. Federal Constitutional Court, Order of the Third Chamber of the First Senate of 30 May 2018 - 1 BvR 45/15 -, para. 16 f.). Thus, the individual subject to the levy must be able to estimate the amount of the prospective fiscal burden on the basis of the normative stipulations (cf. Federal Constitutional Court, Order of the Third Chamber of the First Senate of 30 February 2018 - 1 BvR 45/15 -, para. 18).

112

If the immediate purpose of the levy is to cover certain costs, it is not strictly necessary to lay down the rate of the levy in the statute. On the contrary, sufficient specificity can also be established by laying down the assessment criteria used to calculate the costs that form the basis of the levy (cf. BVerfGE 108, 186 <234 ff.>). In this respect, the principle of specificity in the field of fees and contributions law requires a degree of regulation that is suitable to exclude an arbitrary handling of the provisions by the administrative bodies that apply them in the respective context (cf. BVerfGE 108, 186 <236>; 124, 348 <381 f.>; Federal Constitutional Court, Order of the Third Chamber of the First Senate of 30 May 2018 - 1 BvR 45/15 -, para. 17).

113

bb) § 4(4) of the Bremen Fees and Contributions Act does not violate the principle of specificity and legal clarity. The constituent elements and legal consequences challenged in the constitutional complaint, specifically the elements ‘violent acts’, ‘experience-based’, ‘prior to, during or after the event, at the event venue, at the routes to and from the venue or otherwise in the vicinity of the event’ and ‘the provision of additional policing services is foreseeably necessary’, do not give rise to problems of interpretation that cannot be addressed using established legal methodology. As can also be seen from the reasons of the challenged decisions, there are no uncertainties that would render the provision impracticable (cf. in this regard BVerfGE 25, 216 <226 f.>).

114

The fact that the organisers themselves were unable to precisely calculate in advance the fee they would be charged does not change this. The principle of specificity does not require that fee assessment provisions allow for a precise calculation of the fee in advance. The phrasing of § 4(4) of the Bremen Fees and Contributions Act allows the small group of individuals subject to the fee to at least roughly estimate its amount because § 4(4) third sentence of the Bremen Fees and Contributions Act requires that they be notified of the estimated amount of the fee prior to the event (cf. in this regard Federal Constitutional Court, Order of the Third Chamber of the First Senate of 30 May 2018 - 1 BvR 45/15 -, para. 18). Regardless of this, the organisers are aware of the assessment criteria used for the estimate of the event fee under § 4(4) second sentence of the Bremen Fees and Contributions Act based on the detailed General Cost Ordinance and the data of the specific police operations. Consequently, the legal bases for the calculation of the additional costs for high-risk matches of the Bundesliga are sufficiently detailed to exclude an arbitrary application of the provisions by administrative bodies. The requirements of the principle of specificity therefore have been sufficiently addressed.

115

[...]

II.

116

§ 4(4) of the Bremen Fees and Contributions Act is compatible with the general guarantee of the right to equality (Art. 3(1) of the Basic Law).

117

1. Fee provisions must satisfy the requirements of the general guarantee of the right to equality. Art. 3(1) of the Basic Law requires that all people be treated equally before the law. The resulting principle to treat equally what is essentially alike and to treat unequally what is inherently different applies to both burdens and privileges. At the same time, Art. 3(1) of the Basic Law does not forbid every differentiation made by the legislator. Differentiations, however, must always be justified by objective reasons commensurate with the aim and the extent of the unequal treatment. The standard of constitutional review applicable here, which is based on the principle of proportionality, is a fluid one whose contents and limits cannot be determined in the abstract, but instead must be determined with regard to the particular subject matters and regulatory areas affected by the law at issue (cf. BVerfGE 138, 136 <180 para. 121> with further reference; 148, 147 <183 f. para. 94>; 161, 63 <134 f. para. 166>; 167, 163 <235 f. para. 174>; established case-law). The general guarantee of the right to equality gives rise to varying limits on the legislator depending on the matter addressed and on the criteria for differentiation; these range from the mere prohibition of arbitrariness to strict proportionality requirements. Stricter constitutional requirements may apply, for instance, where unequal treatment also affects specific fundamental freedoms in the individual case. Moreover, the less control that individuals have over the criteria on which the statutory differentiation is based, the stricter the constitutional requirements for justifying unequal treatment; the same applies the more the grounds of differentiation resemble prohibited grounds of discrimination listed in Art. 3(3) of the Basic Law (cf. BVerfGE 138, 136 <180 f. para. 122>; 149, 222 <253 f. para. 64>; 158, 282 <327 f. para. 111>; 161, 63 <134 f. para. 166>; established case-law).

118

2. The provision differentiates between different groups by not imposing a fee for the additional provision of police forces on all organisers, but only those that meet the criteria set out in § 4(4) of the Bremen Fees and Contributions Act; to the extent that it does so, it must be measured against the standard set forth in Art. 3(1) of the Basic Law.

119

a) A comparison group exists with regard to those organisers whose events are not of a ‘for-profit’ nature but which can nonetheless be expected to attract the simultaneous participation of more than 5,000 persons and for which the necessity of a provision of additional policing services is foreseeable because it can be expected that violent acts will be committed prior to, during or after the event, at the event venue, at the routes to and from the venue or otherwise in the vicinity of the event.

120

b) Another comparison group is made up of those organisers who host an event within the meaning of § 4(4) of the Bremen Fees and Contributions Act, which nonetheless is not expected to attract the simultaneous participation of more than 5,000 persons.

121

c) The unequal treatment of organisers like the complainant as compared to the two comparison groups is subject to a less restrictive review of proportionality.

122

From an equality perspective, fee provisions are not subject to high justification requirements because of their compensatory nature that characterises them as levies compensating a benefit. A fee is a constitutionally accepted levy which, if its reciprocal character is maintained, has only a limited adverse effect in and of itself. In this way, § 4(4) of the Bremen Fees and Contributions Act imposes a statutory fee for expenditures caused in the context of for-profit events, which represents in essence the monetary consideration for a service provided and is therefore similar to other costs for economic activities that generally fall under civil law. The burden of obligations to pay that are linked to an expenditure attributable to a party in the context of economic activity does not, based on its subject matter, give rise to high justification requirements. Furthermore, the differentiation is not based on the criteria laid down in Art. 3(3) of the Basic Law.

123

Nevertheless, § 4(4) of the Bremen Fees and Contributions Act must not only be measured against the general prohibition of arbitrariness. While an effect on the occupational freedom protected under Art. 12(1) of the Basic Law does not invariably lead to a stricter examination of proportionality (cf. BVerfGE 81, 156 <205>; BVerfGK 16, 162 <170 f.>; addressed but not ultimately resolved in BVerfGE 145, 20 <87 para. 173>; without explicitly addressing the principle of proportionality BVerfGE 149, 126 <153 para. 69>), the legislator does have narrower room to manoeuvre depending on the extent to which the unequal treatment may affect the exercise of the freedom of occupation (cf. BVerfGE 107, 133 <141>; 164, 347 <414 para. 184> – Corporation tax increase potential).

124

Due to the severity of the interference involved in the present case (cf. para. 83), this results in a stricter examination of the unequal treatment than would be necessary if only a violation of the prohibition of arbitrariness were to be examined. Not only is an objective reason necessary, but an appropriate balance must be struck between the benefit to the common good pursued by the unequal treatment and the resulting inequality (cf. BVerfGE 162, 178 <182 para. 9> – Exclusion of residential property from asset testing for unemployment benefit). According to this standard, the objective reason that would suffice as grounds for justification in the context of a mere review against the standard of the prohibition of arbitrariness must lie in the purpose for the differentiation and be proportionate to the burden caused by such a differentiation.

125

d) Overall, the differentiations made fulfil these requirements.

126

aa) The differentiations serve to realise the purpose pursued by the interference (cf. para. 68 ff. above). The aim is to require those individuals who seek to generate profits by making excessive use of the provision of public security to bear the costs of such service. The expenses are to be shifted to the entities that generate and typically receive the profits. By tying the fee to the profit motive, the burden is shifted to the domain in which those liable for the fee are receiving a benefit. Although both groups are similarly responsible for causing the provision of additional police forces, the difference between the benefits reaped by for-profit events, which generate a financial advantage, and those of not-for-profit events is so extensive that it is capable of justifying the exclusion from fees of not-for-profit events.

127

bb) Restricting the fee to events that are expected to have more than 5,000 simultaneous participants pursues the aim of only targeting those events that require substantial additional policing services. This element therefore partially pursues the same aim as the element of the particular risk. It is designed to only apply to events that result in considerable use of public security measures for a special purpose, both financially and administratively. Moreover, the focus on an event’s size pursues the same aim as the criterion of profit motive. It is to be assumed that the larger the event, the greater the profits generated. Prospective attendance figures of more than 5,000 participants constitute a threshold of significance that has an indicative effect both for the complexity of the police operation as well as for the generatable economic gain. Drawing the line at 5,000 participants is not obviously unreasonable. This number ensures that only those events fall within the scope of the provision that cause a necessity for a provision of additional police forces because the risks involved cannot be addressed with the normal number of police officers; this serves as a legal definition of the concept of a quantitative special use. This differentiation serves precisely to pursue the aim of the interference; it is not disproportionate to the burden resulting from it.

III.

128

The interpretation and the application of the provision under § 4(4) of the Bremen Fees and Contributions Act also do not violate the Basic Law.