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Re-registration fee of 100 DM per semester under the former Berlin Higher Education Act unconstitutional

Press Release No. 80/2012 of 06 November 2012

Order of 06 November 2012
2 BvL 51/06

By an order of 6 November 2012, the Second Senate of the Federal Constitutional Court ruled the statutory provision in the former version of the Berlin Higher Education Act (Berliner Hochschulgesetz - BerlHG) requiring payment of a 100 DM re-registration fee to be unconstitutional. The provision, which was declared to be null and void, had been introduced by the Budget Structure Act (Haushaltsstrukturgesetz) 1996. The present decision has no bearing on the amended provisions on fees which have been in effect since 15 December 2004.

The plaintiffs in the original proceedings seek reimbursement of the re-registration fees which they paid as students of Berlin universities. By orders dated 15 February 2006, the Higher Administrative Court (Oberverwaltungsgericht) in Berlin-Brandenburg suspended the original proceedings and submitted to the Federal Constitutional Court for decision the question of whether § 2 sec. 8 sentence 2 BerlHG in the respectively applicable version was consistent with the Basic Law (Grundgesetz - GG) insofar as it required payment of a fee of 100 DM per semester upon each re-registration.

In Essence, the Decision is Based on the Following Considerations:

§ 2 sec. 8 sentence 2 BerlHG (former version) is incompatible with Art. 2 sec. 1 in conjunction with Art. 104a et seq. GG and Art. 3 sec. 1 GG and is null and void insofar as it required a fee in the amount of 100 DM to be paid upon each re-registration.

1. Having regard to the limiting and protective function of the constitutional rules governing public financing (Art. 104a et seq. GG), and to an equal treatment of the fee-payers (Art. 3 sec. 1 GG), the levying of non-tax dues requires a particular objective justification going beyond the mere purpose of bringing in revenue. This applies both to the basis and to the amount of the fee.

Being monetary payments under public law which are levied in respect of a public service which is individually attributable in order to cover in part or in full the costs of the service, fees are justified in principle by their compensatory purpose. Alongside coverage of costs, purposes that have been recognised as possible justifications of the given level of a fee are the purposes of compensating for benefits, setting behavioural incentives, and/or taking account of social factors. However, only purposes which are based on an identifiable legislative decision can objectively justify the calculation of a fee. Constitutional review of the calculation of fees must not interfere with legislative discretion. A provision on fees is, however, objectionable if the amount of the fees is grossly disproportionate to their legitimate purpose.

2. The calculation of the 100 DM fee payable upon each re-registration does not meet these constitutional standards.

a) In accordance with the reasoning of the Higher Administrative Court, with which the Federal Constitutional Court concurs, the statutory provision which is subject to examination does provide for a mixed-purpose fee to be applied upon matriculation and re-registration. It provides for two independent fees for different administrative services. The re-registration fee thus serves the sole purpose of covering the costs of processing the re-registration applications.

The objections raised by the House of Representatives and the Senate of Berlin against this assumption are unfounded. The House of Representatives and the Senate of Berlin essentially argue that the fee also covers expenditure incurred by the university in performing other tasks, and compensates benefits which students derive from the services of the university. A draft of the Budget Structure Act 1996 drawn up by the Senate originally contained wording according to which 100 DM per semester were to be charged with effect from the winter semester 1996/97 "for" matriculation and "for" each re-registration ("für" die Immatrikulation und "für" jede Rückmeldung"). In order to allay concerns raised in preparatory committees of the parliamentary political groups forming the governing coalition , the draft was amended to the effect that the word "für" ("for") was replaced by the word "bei" ("upon"). Accordingly, the House of Representatives and the Senate of Berlin argue, re-registration was merely the occasion for levying a fee for the other purposes mentioned. Leaving aside the question of whether wholly undocumented events, such as are being adduced here, can at all be assigned crucial significance with respect to identifying the will of the legislature at the time, it is not even asserted in the present case that the legislative assembly whose will is at issue here was aware of the procedures in question. What is presented as the background to the choice of words are political consultation processes within the preparatory committees of certain parliamentary groups prior to introduction of the draft legislation into the parliamentary process. On the other hand, the relevant draft legislation submitted to the House of Representatives reveals no recognisable intention to extend the purpose of the fee to cover more than the administrative expenses of matriculation and re-registration. For, as evident in the explanatory memorandum, the fee chargeable "upon" matriculation and re-registration according to the wording of the statute was specifically intended to be levied "for" matriculation and re-registration. Even if the history of the legislation could be interpreted as indicating an intention of the legislature to extend, by using the word "upon", the purpose of the fee to cover more than the administrative expenses of matriculation and re-registration, this would leave unclear what further cost-covering or other purposes were to be pursued. Accordingly, the fee would also not be clearly distinguishable from the utilisation fee (Benutzungsgebühr) permissible under § 2 sec. 8 sentence 1, and from the tuition fee prohibited by § 2.10 of the statute.

Insofar as the House of Representatives and the Senate of Berlin rely in their brief on the particular time pressure under which the legislature was placed with respect to the Budget Reform Act, this cannot override the requirement that the purpose of the fee be defined in an unambiguous manner.

b) The level of the fee, set at 100 DM, is grossly disproportionate to the purpose of covering the costs of processing the re-registration which, according to the comprehensible calculations made by the Higher Administrative Court, came to an average of 22.41 DM. Furthermore, the level of the fee concerned would remain grossly disproportionate even if the relevant provision were interpreted as providing for a standardised fee, payable upon matriculation and upon re-registration, in order to cover the costs of both administrative processes jointly.