Die lenkende Abgabe. Maßstäbe, Erscheinungsformen und Perspektiven der rechtfertigungsbedürftigen Ausnahme

Abstract

Steering through charges and levies

The exception, which requires justification, seen in terms of its legal criteria, typology and perspectives

The concept of using charges and levies in order to influence citizens' conduct is something which has been with us since the seventeenth century at least. Policy-makers in the Federal Republic nonetheless initially focused on exerting an influence on taxpayers through classical taxes. It was not until the 1970s that steering via non-tax charges gained ground, but this mechanism has made considerable inroads since then, particularly in environmental law. Analyses of the legal boundaries imposed on steering through such charges still focus on the burden-sharing role played by taxes, very largely neglecting other types of charge.

The article first of all attempts to collect the broad phenomenon of steering, non-fiscal charges into four case groups. Each group emphasises a specific tool by means of which the objective of the steering process is to be achieved. A distinction is made between avoiding, supporting, burden-equalising as well as obligation-equalising charges. On the basis of the thoroughly-researched legal questions concerned with the steering of conduct through taxes, seven legal requirements are thereupon worked out for steering through charges and levies (the special factual justification of the purpose of the steering, the extent to which the charges exceed or fall short of the financial requirement, an unambiguous legislative steering decision and logical design, budgetary consequences that are embedded in a regulatory concept, equality in the reason for and the amount of steering, no relief at the expense of public finances, proportionate financial intervention and government intervention). The freedom rights in particular pose the difficult question of the degree to which public finances are to steer by means of financial incentives, thus enabling the State to abandon its stick and take up the carrot. This seven-tier model is then applied to the case groups of steering, non-fiscal charges, and the article thus attempts in overall terms to develop a general legal system of such charges. It is stressed here that steering, non-fiscal charges are the exception in the State's fiscal regime, and that such charges are in need of a justification.