Year:    2013

Author:    Droege, Michael

Die Verwaltung, Vol. 46 (2013), Iss. 3 : pp. 313–348

Abstract

Legitimation and limits of non-tax levies under constitutional law

The German Basic Law proves to be an adjustable system concerning its financial constitution. The latter not only contains and regulates the taxes, but also the non-tax levies. Additionally to the traditional forms of non-tax levies like fees and contributions, there is a constant tendency of creating special levies whose mere purpose is to raise public funds. The increasing amount of non-tax levies seems to be a sign that public finances are going to be no longer mainly founded by taxes but by non-tax levies. But it also explains the attempt to secure taxes as the main constitutional fundraising instrument and to make non-tax levies an exemption. The constitutionally prescribed limits for non-tax levies can be found in the constitutional rights, particularly in the constitutional guarantee of equality. Accordingly this guarantee is the basis of the benefit principle concerning non-tax levies. In order to counter the constitutional concerns it is suggested to contemplate a basic legitimation of non-tax levies. The difference between taxes and nontax levies is that the latter is imposed on a special group of chargeable persons whilst taxes are imposed on basically everyone.

The process of individualization of financial liability due to non-tax levies is comparable to the process of privatization of public services. They are also legitimated through the democratic decision-making authority. The jurisdiction concerning non-tax levies demands a specific relation between the object pursued with the non-tax levy and the group of chargeable persons on whom it is imposed. The reason for this specific relation is not the result of an analysis of highly abstract and constitutionally prescribed responsibilities of public administration, but the normative description of real-life circumstances. Possible application areas for non-tax levies in the public economy law can be seen in form of bank charges; even in the traditional core area of public exercise of functions – internal security, non-tax levies can be used constitutionally in a large scale.