Grenzen der Umlage von Kosten auf die Allgemeinheit. Verfassungsrechtliche und europarechtliche Überlegungen am Beispiel der Förderung erneuerbarer Energien

Author： Schröder Meinhard

Publisher： Mohr Siebeck

E-ISSN： 1868-6796|140|1|89-120

ISSN： 0003-8911

Source： Archiv des oeffentlichen Rechts, Vol.140, Iss.1, 2015-01, pp. : 89-120

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Abstract

Traditionally, tax revenue is considered the main source of income for a state. If its height is insufficient to cover the expenses, the state must take on debt. The Basic Law clearly follows this concept when it states rules on taxes and debt in its X^th section. However, a look on the way public tasks are financed shows that a considerable amount of money is raised by special charges, the income of which remains “beside” the general budget. A recent example of legislation following a similar pattern is the renewable energies act (EEG), which imposes a special charge, called apportionment, on energy consumption to finance the (politically desired, but too expensive) production of renewable energy beyond the market price for energy. Spreading the cost among most energy consumers, the EEG provides for its apportionment to a group which is almost identical with the general public. The aim of this article is to examine the limits both constitutional and European law establish to such an apportionment.With regard to the constitution, fundamental rights merely limit the imposition or usage of such charges. Therefore, the starting point must be the jurisprudence of the Federal Constitutional Court, which has declared parafiscal charges only exceptionally constitutional. It is first shown that a charge can exist even if the beneficiary is not a state entity. Claims from private actors, in the EEG case the network operators, may be attributed to the state in cases where their actions are fully determined by the state – they act as the state's long arm. Second, in the absence of a responsibility of a certain pre-defined group to finance a task, there must be a special reason for not funding it from the general budget, which is the regular source of money for expenditure. In the case of the EEG, such a reason is not apparent.With regard to European law, the main question is whether or not the beneficiaries of parafiscal charges receive state aid in the sense of article 107 (1) TFEU. Following the definition the ECJ has given to the term “any aid granted by a Member State or through State resources in any form whatsoever” especially in the Vent de Colère case, the mere fact that parafiscal charges are administrated by private actors such as network operators cannot outweigh the state's involvement. Insofar, similar reasoning must be applied as has been when attributing the charges to the state. State aid being involved, its compatibility with the internal market will in most cases depend on the way the European Commission applies the discretion it is given by article 107 (2) TFEU. Apart from that, exemptions from the burden of the parafiscal charge constitute additional state aid, which needs to be approved in the same way.As a result, it can be held that the apportionment of costs to the general public by special charges is not a miracle cure for budgetary problems. Constitutionally, it is admissible only in rare cases where there is a specific reason not to finance a task from the general budget, and under European Union Law, it must be notified as state aid and be authorized by the European Commission.