Öffentliche Aufgaben in privater Hand – Sachverantwortung und Finanzierungslast

Abstract

The German Basic Law envisions a role for both citizen and state in fostering the common welfare. Trust in individual freedom is the starting point for achieving this goal. But individual contributions to the public welfare usually entail individual financial responsibility as well. Only in certain exceptional cases does the law provide for financial compensation. These exceptions are to be found in public interest law, in the law on subsidies and in the law on state liability. The exceptional character of compensatory regulations is rooted in the dichotomy between state and society. According to this dichotomy, legal constraints on private freedom generally only serve to circumscribe individual spheres of liberty. The dichotomy between state and society, however, is becoming increasingly vague. More and more often, citizens are legally obligated to actively support public purposes. In addition, the law increasingly allocates financial responsibility for promoting the common welfare to individuals, culminating in cases where citizens are legally bound to fulfil certain tasks without financial compensation. It seems feasible, however, to rely on constitutional law principles to confine state power in this area. Accordingly, it appears legitimate to require a citizen to fulfil a task in the public interest without compensation only in cases in which this citizen bears particular responsibility for the aim that is to be achieved. When, on the other hand, the citizen cannot be deemed individually responsible for achieving the aim itself but at the same time possesses specific skills or knowledge or is in other ways capable of promoting the achievement of the aim, he may be obliged to do so. In this case, however, he must be compensated. Without compensation, the regulation is unconstitutional. Additionally, the state has to consider its powers when obliging individuals to fulfil public purposes without compensation. In this regard, it has to be understood that such regulations may circumvent the power to tax, as obliging an individual to fulfil a public purpose is analogous to taxing that individual and then spending the proceeds on achieving the task. As the state is rather inventive in finding ways to legally oblige citizens to contribute to the common welfare without compensation, it is certainly worthwhile to further develop the constitutional limits of such obligations. This again could support an environment in which individual contributions to society rest on freedom rather than on regulation.