Police fees at the expense of the DFL are constitutional

A. The “Lex Werder”

The reason for the years-long legal dispute is a “new” (but now already 10 years old) provision in the fee regulations of the state of Bremen (§ 4 para. 4 BremGebBeitrG), which effectively allows the state a claim for reimbursement of costs for disproportionately extensive police protection measures at so-called “high-risk matches” in paid football. The provision reads as follows:

“A fee shall be charged to event organisers who hold a profit-oriented event in which more than 5,000 people are expected to participate at the same time, if the deployment of additional police forces is foreseeably required due to acts of violence expected from experience before, during or after the event at the venue, on the access or exit routes or otherwise in the spatial environment. The fee shall be calculated on the basis of the additional expenditure incurred due to the additional deployment of police officers. The organiser must be informed of the expected fee obligation prior to the event. The fee can be calculated according to the actual additional costs or as a flat-rate fee.”

If you read carefully, you will realise that the regulation does not apply exclusively to football, but to major events of all kinds. These can also be music festivals, marathons, concerts or events such as the Munich Oktoberfest. However, the legal regulation has its origins in football matches, where experience has shown that there is a particular risk of danger from fan groups of the teams involved. These are usually derbies, where the special decades-long rivalry between the fans meets on the pitch.

For the first time, it was the state of Bremen that adjusted its scale of charges and demanded fees of more than €400,000 from the DFL as co-organiser for the deployment of almost 1,000 police officers to secure the match between Werder Bremen and Hamburger SV. The state was not concerned with passing on the costs of deploying its police forces per se, but rather with the additional costs incurred by the state due to the fact that it had to “borrow” officers from other federal states for a fee due to a lack of sufficient personnel resources of its own. The underlying fee offence is therefore also known as the “Lex Werder”.

Incidentally, the state of Bremen could also have claimed SV Werder Bremen as the organiser of the match in the Weser Stadium, but opted for the supposedly financially heavier DFL, which it considers to be a co-organiser due to the organisation of league operations.

B. The legal process..

The DFL was able to successfully challenge the first and subsequent fee notices in subsequent seasons before the Bremen Administrative Court because the Administrative Court did not consider the underlying cost regulation (from which the amount of the fee can be calculated) to be sufficiently specific. However, the state of Bremen was successful in its appeal to the Bremen Higher Administrative Court, which ruled that the fee notice was lawful overall. From this point at the latest, the cost regulation receded into the background and the issue shifted to fundamental questions of constitutional law, which were then also to be clarified by the Federal Administrative Court in the last instance: Can the state levy fees for tasks that it is legally obliged to perform anyway? Can the DFL be asked to pay for the fact that alleged violence by football fan groups requires a special police presence? Is it perhaps even a case-by-case law that is prohibited under constitutional law just for the special cases of Bundesliga matches?

Although the Federal Administrative Court criticised the amount of the fee, it considered the legal basis to be lawful. In particular, the court differentiated between the general tax liability and the correlate of access to public goods on the one hand and private utilisation for the purpose of making a profit on the other. It considered the levying of charges to be justified if the party liable for the charge is utilised “as a beneficiary of increased police presence” and the amount of the charge is reasonable in view of the profit made possible by the police deployment.

C. … all the way to Karlsruhe

The DFL filed a constitutional complaint against the judgement of the Federal Administrative Court, which was rejected by the Federal Constitutional Court (BVerfG) as unfounded (BVerfG judgement of 14 January 2025 – 1 BvR 548/22 – Police costs for high-risk matches). The BVerfG justifies the decision on the basis of the following basic assumptions:

• Police hazard prevention does not necessarily have to be financed solely from tax revenue by constitutional law.
• Fees levied by the state require an individually attributable state service for the benefit of a citizen or a community of citizens, whereby the provision of emergency services at certain Bundesliga matches is an individually attributable service for the organisers.
• The charging of fees is proportionate and has also been applied proportionately in individual cases.

I. Shaking the foundations: on the financing of security law fees

The crucial question of the case is this: Can the costs of state security generally or to a certain extent be imposed on individuals because they supposedly benefit (economically) from security?

1. Tax state – also financed by fees?

The Federal Republic of Germany is fundamentally constituted as a tax state by its financial constitution. According to this, the state must cover its expenditure primarily by levying taxes (see Art. 105 to 108 of the Basic Law). This financial containment is also intended to democratically secure the state. The levying of taxes leaves sovereignty over finances with the democratically legitimised parliament. Additional sources of revenue should remain the exception according to the conception of the constitution, including in particular state borrowing (cf. Art. 115 GG – the now mystified “debt brake”), state employment and the levying of charges on citizens. The tax state should not only be a burden, but also a protection for citizens: citizens should be able to assume that they will not be burdened with taxes in addition to taxes.

According to the Federal Constitutional Court, fees are thus intended to cover state costs and compensate for the value of state services, as distinct from taxes, if the services benefit individuals in an individually attributable manner. . While the tax is an abstract levy for the state budget, the fee is to be understood as a reaction to a certain favouring of the individual through state action.

In principle, therefore, the state may also levy charges if it is not pursuing a general financial policy but wishes to equalise burdens and benefits, in particular by seeking to cover the costs of a specific public service.

2. Hazard prevention law is a matter for the state – but not necessarily state expenditure

On the basis of these fundamental findings on the general permissibility of fee financing, it is argued that the levying of fees must regularly be inadmissible in the context of state hazard prevention. The two main arguments are:

• Averting danger is a core task of the state. The state has a monopoly on the use of force for good reason and must therefore also bear the financial burden of performing this task without charging citizens for it.
• The state must intervene on the basis of its constitutional duty to protect citizens (Article 2 (2) sentence 1 of the Basic Law) in the event of threats to public safety and order, but may not charge any fees as a result of the fulfilment of this duty.

The BVerfG considers these arguments to be wrong in their generalisation. It mentions certain sovereign services for which fees are charged for core tasks of the state, e.g. court proceedings before the ordinary (state) courts.

The fundamental right to effective legal protection under Art. 19 para. 4 GG and the right to the guarantee of justice under Art. 2 para. 1 in conjunction with Art. 20 para. 3 GG would show that there is no entitlement to exemption from fees for any state services.

II. fee debtor DFL

Firstly, it should be noted that the DFL did not necessarily have to be the party liable for the fee. The federal state of Bremen could just as easily have claimed SV Werder Bremen as the home club and organiser. However, it would have been politically controversial to burden a figurehead of the city in this way. The fact that the DFL, as at least a co-organiser, was also a potential addressee of the fee obligation made it “optically” easier for the authorities.

It follows from the compensatory nature of the fee that it must have an individual and concrete connecting factor that justifies its collection (e.g. a special responsibility, a special proximity relationship or an individual imputability). There must therefore be a specific connection between the person liable to pay the levy and the benefit obtained through the public service. In this case, the DFL would therefore have to have obtained a compensable advantage through the police presence at league matches.

The BVerfG focuses on the “special use” of public services that exceeds the usual level, i.e. that the DFL uses the limited state resources for hazard prevention in a special way by (co-)organising the league matches.

Although mere causality is obviously not sufficient, the DFL is objectively dependent on the police measures in order to continue organising its events. The access routes and security around the stadium and in the city are preconditions for league operations.

The (non-)responsibility of the DFL under police law was also irrelevant. The obligation to police must be separated from the obligation to pay costs. This ultimately results in the judgement from the repeatedly emphasised exchange character of the charging of fees. It is not the behaviour that gives rise to the fee, but the financial compensation of performance and consideration.

III Proportionality

The BVerfG is brief on the issue of proportionality: The fee burden does not result in an unreasonable burden and would not have a stifling effect. The interference with the freedom to choose an occupation under Art. 12 para. 1 GG does not outweigh the legitimate objective of not burdening the general public with the special financial burden imposed on the police by the organisation of high-risk matches.

D. A little shaking won’t knock the house down?

Before explaining the reasons in detail, the President of the BVerfG, Prof. Dr Stephan Harbarth, noted the following with regard to the public discourse: “The Senate did not rule on whether the regulation adopted is politically reasonable, prudent or even desirable, it only decided that the Basic Law does not prohibit the legislature from creating such a regulation, as is the case here, for high-risk matches in the Bundesliga”.

I. Consequences in football..

The BVerfG thus focuses on the effects of the judgement on the football scene, which are difficult to assess. According to current practice, the DFL has passed on the fees to the clubs. As a result, the judgement also indirectly affects the landscape of sporting competition because the – notoriously difficult – financial situation of the clubs is affected. It must be borne in mind that there are quite a few clubs in Germany that have both little money and practically only high-risk matches (think Dynamo Dresden or Hansa Rostock) and may not even be able to cope with the additional burden. At the same time, there are clubs in the Bundesliga that have a lot of money and almost no high-risk matches (such as RB Leipzig or TSG Hoffenheim). If fees are levied across the board, this will also exacerbate the financial inequality in the professional leagues. If the other federal states now follow suit and enact fee regulations based on the Bremen model, the DFL will presumably also be held liable for the fees (and not the clubs directly), but the question of how the DFL will allocate the costs will be a challenge. In addition, clubs outside the DFL would also be affected by the Bremen ordinance, e.g. regional league clubs with a high average attendance such as Jena, Halle, Lok. Leipzig, Offenbach and Duisburg and would therefore very likely be directly liable for the fees.

It is feared that the decision in favour of such a fee would give the authorities non-transparent discretionary powers as to when a so-called high-risk match is deemed to have occurred and what personnel and material costs are required to control the risks. This is based on the fact that the offence of charging is based on the false assumption that football fans or the Ultras among them are generally prone to violence.

This danger does indeed exist. The only way to ensure that police behaviour in the vicinity of football matches is subject to judicial review would be through a judicial review of the charge notices and, above all, the amount of the charge. Case law could then be used as a yardstick for the authorities to use when assessing dangerous situations.

II. … and beyond

In addition to the eloquent reminder of political caution, this perspective also makes the judgement smaller than it is. The BVerfG has not only ruled on a regulation for high-risk Bundesliga matches, but also on Section 4 (4) BremGebBeitrG, which is applicable in the abstract to all profit-orientated events with more than 5,000 participants and a similar risk potential, i.e. also to Christmas markets, marathon events or the Munich Oktoberfest. It has also paved the way for further fee plans by the police legislator, which is why there were warnings in the run-up to the law that it would not be without reason.

Depending on how you look at it, it is therefore a question of financial constitutional law with more or less far-reaching implications for the security architecture of the Federal Republic of Germany. Apocalyptic scenarios, such as making assemblies impossible by imposing extreme charges, can be dismissed, as the Federal Constitutional Court expressly mentions Article 8 of the Basic Law in its judgement as an example of a fundamental right that is not subject to charges (para. 72) and has also applied a considerably tougher standard of justification for charges in previous decisions in the context of Article 8 of the Basic Law (see Federal Constitutional Court, decision of 25 October 2007 – 1 BvR 943/02).

However, in view of the current budgetary situation, one should not delude oneself that the legislator will not make any further use of the possibility of charging fees. The grey areas under assembly law are particularly at risk. For example, there have already been attempts by the authorities to deny the CSD the character of an assembly, which would potentially open up the scope of application for a charge under police law. Traditional public events such as Christmas markets or marathons are also likely to be susceptible to charges.

Unlimited fee-based financing of the state security structure threatens to desertify public life without providing more security or reducing the burden on the state. It should not be forgotten in the debate that all high-risk events with high visitor numbers are also economically relevant. What the state collects in fees is lost to the tax authorities if these events are no longer able to raise the fee burden. Much will then be up to the courts of appeal, which will hopefully take a close look at the judgement of the Federal Constitutional Court and make use of the many barriers it contains.

The central restrictive elements are (1.) the compensatory nature of the levying of charges, which makes it necessary for the party liable to pay the charges to be able to generate considerable profits by utilising the state’s security services, (2.) the justification of the special proximity relationship or the individual imputability for the fee debtor, whereby it depends in particular on the causality, the knowledge of the propensity to danger, the necessity of the danger defence for the generation of profits and the acceptance of the propensity to danger and (3.) the proportionality, which in this case spoke against the DFL in every point due to the quantitatively extreme extent of the use of state capacities, the particularly high profit of the DFL and the low weight of the intervention. In the case of concerts, for example, a proportionality test based on Article 5 III of the Basic Law would look very different.

Parallels can be drawn with the case law of the BVerfG on special levies (e.g. BVerfG decision of 18 May 2004 – 2 BvR 2374/99; BVerfG, judgement of 18 May 2004 – 2 BvR 2374/99). 6.7.2005 – 2 BvR 2335/95), which is characterised by an emphasis on the limiting and protective function of the financial constitution and a restrictive interpretation. This line of jurisprudence tends to argue against a future unrestricted expansion of the elements of charges under the law of defence against dangers and instead an increasing focus on the characteristic of individual imputability, which could be subject to a restrictive interpretation.

E. Conclusion

At a time of tight budgets, the BVerfG’s judgement offers considerable potential for political conflict, and it can be assumed that it will have a considerable impact at least on the club landscape in the Bundesliga if other countries follow suit with similar offences. Legislators will also attempt to shift the financial burden of danger defence. At the same time, however, the judgement provides instruments for the courts of lower instances to put a stop to the unbridled financing of police fees. It will be up to the case law of the courts of lower instances to decide whether the judgement means the approval of a foreign body in the financial constitutional structure or the heralding of a reorientation of the law on fees.