Judgment of 14 January 2025 - 1 BvR 548/22
In a judgment pronounced today, the First Senate of the Federal Constitutional Court held that charging fees for the provision of additional policing services in the context of high-risk football matches of the Bundesliga in the Free Hanseatic City of Bremen is compatible with the Basic Law (Grundgesetz – GG). The constitutional complaint lodged by DFL Deutsche Fußball Liga GmbH is unsuccessful.
Under § 4(4) of the Bremen Fees and Contributions Act (Bremisches Gebühren- und Beitragsgesetz – BremGebBeitrG; hereinafter: the Act), which entered into force in November 2014, fees for additional policing services are levied against organisers of for-profit events with more than 5,000 participants that are, based on past experience, expected to involve violent behaviour from within the group of participants. These fees are based on the costs arising from the provision of additional police forces.
While the challenged provision interferes with the occupational freedom of event organisers protected by Art. 12(1) of the Basic Law, the interference is justified under constitutional law as the provision is constitutional in formal and substantive terms. In particular, the provision, which constitutes a rule regarding the practice of an occupation, satisfies the proportionality requirements. The provision is also compatible with Art. 3(1) of the Basic Law.
Facts of the case:
Under § 4(4) of the Act, fees for additional policing services are levied against organisers of for-profit events with more than 5,000 participants that are expected to involve violent behaviour from within the group of participants. These fees are based on the costs arising from the provision of additional police forces.
In light of plans to hold a Bundesliga match between the football clubs SV Werder Bremen and Hamburger SV at Weserstadion in Bremen on 19 April 2015, the Bremen police informed the complainant of the expected obligation to pay fees as an organiser of for-profit football matches in accordance with § 4(4) of the Act. According to the findings and information available to the police at the time, violent clashes between fans of the competing football clubs would in all probability have to be expected on match day unless this was countered by a strong police presence and effective police measures. According to leading police officers, the police operation on the day of the match, in which the Bremen police was supported by forces from Schleswig-Holstein, Hamburg, Hesse and from the Federal Police, went smoothly overall. The Bremen police issued a notice to the complainant, as the organiser of the match, demanding payment of fees in the mid six-figure range for the necessary deployment of additional police forces.
The complainant’s objection to this notice was unsuccessful. Following legal action taken by the complainant, the Administrative Court (Verwaltungsgericht) suspended the fee notice and issued an objection decision.
Following the appeal (Berufung) of the Free Hanseatic City of Bremen, the Higher Administrative Court (Oberwaltungsgericht) reversed the judgment of the Administrative Court and rejected the complainant’s action. It held that the provision on fees in § 4(4) first and second sentence of the Act was constitutional. In the appeal on points of law (Revision), the Federal Administrative Court (Bundesverwaltungsgericht) reversed the decision of the Higher Administrative Court, but, for the most part, confirmed the Higher Administrative Court’s legal view.
After the decision was remanded to the Higher Administrative Court, it again reversed the decision of the Administrative Court and rejected the complainant’s action.
With its constitutional complaint, the complainant challenges the decisions of the Higher Administrative Court, the Federal Administrative Court and, primarily, the provision on fees as such. The complainant asserts a violation of its fundamental rights under Art. 12(1) and Art. 3(1) of the Basic Law.
Key considerations of the Senate:
The constitutional complaint, which is only admissible in part, is unfounded.
I. While § 4(4) of the Act interferes with the occupational freedom of organisers protected by Art. 12(1) of the Basic Law, the interference is justified under constitutional law.
1. The provision is formally constitutional. In particular, the Land – the Free Hanseatic City of Bremen – has legislative competence under Art. 70 of the Basic Law. Fees are categorised as non-tax levies. As levies which compensate a benefit, they have features that distinguish them from taxes, which is necessary under constitutional law. Fees thus amount to payments under public law, imposed on entities or persons by way of a provision under public law or another act of state authority on the basis of services rendered that are attributable to these entities or persons; they are in particular designed to cover the costs of these services, either entirely or in part, or to obtain compensation for their benefit or value. The payment obligation arising from § 4(4) of the Act constitutes a non-tax levy in the form of a fee, since it imposes the costs (i.e. the additional expenditure) for the public service of the provision of additional police forces on the organisers.
2. § 4(4) of the Act is also substantively constitutional. In particular, the provision, which constitutes a rule regarding the practice of an occupation, satisfies the requirements arising from the principles of proportionality and of specificity.
a) The provision aims to pass on the additional costs of policing services provided in the course of the specified events to the organisers. Its aim is to shift the costs to the entity that earns the profits. It is meant to ensure that the additional costs of police operations are not paid by all taxpayers, but, at least to some extent, by the (in)direct economic beneficiaries of these operations. This constitutes a legitimate aim.
The Constitution does not set out any general prohibition on charging fees in police law which could conflict with the aim pursued by § 4(4) of the Act. No general principle arises from constitutional law according to which police security measures must be provided free of charge in all cases. The provision of public security does not amount to a general state activity that would need to be financed exclusively from tax revenue in all cases.
b) The obligation to pay the fees is suitable and necessary to achieve the aim pursued.
c) The restrictions on occupational freedom under Art. 12(1) of the Basic Law resulting from the fees are appropriate.
aa) In particular, the fees are charged as compensation for a service that is attributable to the individual entities concerned.
(1) There is a sufficient link between the entities liable to pay the fees and the public service concerned, i.e. the provision of additional policing services. This attribution is justified by an overall assessment of several aspects, which can mainly be subsumed under the principle that the perpetrator pays.
(a) By organising events in the context of which substantial violent incidents are to be expected (high-risk events), the organisers prompt the state to provide significantly greater public security measures, which would not be necessary if the high-risk event were not held; they thereby make excessive use of limited public resources, creating a link to the public service provided.
From an evaluative perspective, too, there is a link between the provision of additional policing services and its cause. In the present case, the link to the additional policing services that are subject to the fee also follows from their particular scope, which is clearly caused by the event and not by the general public.
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 quantitatively greater use of the provision of security for a special purpose is sufficiently plausible. Compared to matches that are not high-risk, the high-risk match that is the subject matter of the constitutional complaint required the deployment of considerably more police forces.
Furthermore, there is a particular link to the provision of additional police forces, which incurs costs, given that the organisation of a high-risk event entails particular dangers and thereby makes excessive use of limited public resources. In particular with regard to high-risk football matches, the need to provide additional police forces is plausible due to the particular dangers involved; it is based on many years of experience.
(b) The state measures covered by § 4(4) of the Act also have a specific link to the events listed in the provision because they make such events possible in the first place. The organisers are objectively beneficiaries of the provision of police forces, without having requested or expressly asked for it. The minimisation of risk this entails benefits them because without it, they could not hold their events, or at least could not do so in the chosen form.
(2) Individual attribution does not require that the organisers be responsible under police law. There is no such principle in the Basic Law.
(3) Increased public security measures prompted by large events involving risks can be attributed to the organisers although the realisation of the risk depends on the – possibly unlawful – conduct of third parties. Deliberate action by third parties does not necessarily break the chain of attribution of the additional expenditure, at least when the event is held in the knowledge that it might involve risks.
bb) In an overall assessment, too, the fees imposed on event organisers in Bremen do not result in inappropriate impairment of their occupational freedom. In principle, the aims pursued – not imposing the costs of additional policing services for high-risk events on the general public, but imposing them on organisers, which have prompted the additional expenditure and want to make a profit with the event – are not disproportionate to the impairments to occupational freedom that follow from the obligation to pay the fees. In particular, it is not ascertainable that § 4(4) of the Act imposes inappropriate burdens or has a crippling effect. When assessing the financial burdens imposed, it must also be taken into account that § 4(4) of the Act only concerns a small proportion of commercial events.
d) Moreover, § 4(4) of the Act satisfies the principle of specificity and legal clarity. The constituent elements and legal consequences challenged in the constitutional complaint do not give rise to problems of interpretation that could not be addressed using established legal methodology. This is not altered by the fact that the organisers themselves cannot precisely predict the amount of fees they will be charged. The principle of specificity does not require that the precise amount of fees can be derived from the provisions regarding the calculation of the fees.
II. § 4(4) of the Act is also compatible with the general guarantee of the right to equality following from Art. 3(1) of the Basic Law.
The provision differentiates between different groups by not imposing fees for the provision of additional police forces on all organisers, but only on those that meet the criteria set out in § 4(4) of the Act.
In light of the severity of the interference with occupational freedom under Art. 12(1) of the Basic Law, the unequal treatment at issue here not only requires an objective reason, but the benefit to the common good pursued must also be in appropriate balance to the resulting unequal treatment. This is the case here.
1. The differentiations serve to realise the purpose pursued by the interference. The expenses are to be shifted to the entities that generate and typically accumulate the profits. By tying the fees to the profit motive, the burden is shifted to the domain in which those liable for the fees gain a benefit. The difference between the benefits reaped by for-profit events, which generate a financial advantage, and those of not-for-profit events is so big that it is capable of justifying the exclusion from fees of not-for-profit events.
2. Restricting the fees to events that are expected to have more than 5,000 participants pursues the aim of only targeting those events that require substantial additional policing services. This element therefore in part pursues the same aim as the element of particular risk. It is designed to only cover 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 events generate more profits the larger they are. This differentiation serves precisely to pursue the aim of the interference; it is not disproportionate to the burden resulting from it.