Eckpunkte für einen stärker ökonomisch informierten Ansatz im Recht der nichtsteuerlichen Abgaben

Abstract

Key points for a more economically-informed approach

The economic analysis of non-tax duties proceeds from the specific economic characteristics of a collective good and aims at identifying financial instruments to provide it efficiently. Collective goods should be provided by the state if users cannot be excluded from its use or if exclusion is too costly or inefficient. In case of non-rivalry of consumption, funding should then be organized such that consumption is discouraged as little as possible. In case of rivalry of consumption, consumption should be limited to an efficient level.

The economic analysis of non-tax duties is relevant also for the legal interpretation of the fiscal constitution's justification requirements. Thinking of government activity as the production of collective goods, so called ‘finance goals’ refer to the provision of collective goods by the state. Analogous to the benefit principle in public finance, imposing non-tax duties is justified only if the collective good – actually of potentially – benefits the debtor individually or as a member of a homogenous group. Funding of group-related collective goods is further restricted to cases in which the benefits to the group are evident and group members cannot provide the collective good by collective action. So called ‘incentive goals’, on the other side, refer to the protection from negative externalities, in particular with regard to common resources. Here, the imposition of non-tax duties is justified only if the debtor is – individually or as a member of a homogeneous group – responsible for the externality. Also, duties motivated by incentive goals are limited to cases in which the incentive is achieved by extracting benefits received from causing the externality.