Minimum fee of 210 euros for on-site gun control independent of suspicion
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The defendant's notification of fees dated January 26, 2012 and their notification of objection dated May 31, 2012 are canceled.
The defendant bears the costs of the proceedings.
The plaintiff, who was born in 1965, objects to the charging of a fee for the verification of the safe storage of weapons and ammunition.
As a result of the terrible rampage in Winnenden and Wendlingen in March 2009, which was not least made possible by an improperly stored firearm, the gun law was tightened. If a check of the safe storage of weapons and ammunition could only be carried out beforehand if there were justified doubts about safe storage, the amendment to the Weapons Act gave the weapons authority the possibility, within the framework of dutiful discretion, to carry out the checks regardless of suspicion (cf. § 36 Paragraph 3 WaffG in the version applicable since July 25, 2009). For such inspections according to § 36 WaffG the fee schedule of the administrative fee statute of the defendant from 01/01/2010 to 31/12/2011 provided a framework fee of 20 to 200 euros and from 01/01/2012 to 30/06/2013 a framework fee of 210 to 420 euros. Since July 1, 2013, the fee has provided a framework fee of EUR 215 to EUR 435.
The plaintiff is a hunter and a gun owner. He is the holder of a gun ownership card in which a long gun and a short gun are entered. In 2009, he presented the defendant with two invoices for the purchase of a gun safe and a safe as proof of the safe storage of weapons and ammunition.
After the plaintiff was not found at home during two unannounced, suspicious-free checks of the safe storage of his weapons and ammunition on Tuesday, January 17, 2012 and on Wednesday, January 18, 2012, it took place in the plaintiff's apartment on Tuesday, January 24, 2012 a review previously announced in writing by two employees of the defendant takes place. To this end, the plaintiff granted the defendant's employees access to his apartment and led them to the storage containers, where they checked the proper storage of the weapons and ammunition and compared the weapons in the containers with the weapons entered on the weapons possession card. There were no complaints during the review.
In a decision dated January 26, 2012, the defendant set a fee of 210 euros against the plaintiff for checking the safe storage of weapons and ammunition on January 24, 2012.
The plaintiff objected to this decision on February 7, 2012 and argued that the verification of the safe storage of weapons and ammunition was not a fee-based administrative process. He did not initiate the review and it is not in his interest either. The administrative regulation for the Weapons Act also stipulates that inspections independent of suspicion are in the public interest and therefore no fees should be charged. As an alternative, he also turns against the amount of the fee, since the five to seven-minute inspection does not justify such a high fee, but at most a fee of around 70 euros.
With the notice of objection dated May 31, 2012 sent to the plaintiff on 6/4/2012, the defendant rejected the plaintiff's objection and set a fee of 100 euros for this. As a justification, the defendant essentially stated that the plaintiff, as the owner of the weapons, was responsible for the inspection, which was independent of suspicion. Due to the individual attributability of the suspicion-independent control according to § 36 Abs. 3 WaffG, the check is also carried out in the interests of the gun owner. The fee range of 210 to 420 euros set out in the administrative fee statutes is appropriate in view of the administrative and personnel expenses associated with the inspection. For control measures according to § 36 WaffG the calculated hourly rate is 70.18 euros. Each on-site inspection would result in an average of three working hours. This includes the times for the preparation and follow-up of the control measure (30 minutes each) as well as the on-site control, which has to be carried out regularly by two employees (one hour each including travel times) for reasons of self-protection and witnessing the process. The fixed fee of 210 euros is therefore proportionate and corresponds to the specific performance of the administration. The approach to the objection fee results from § 4
Paragraph 3 LGebG in conjunction with Sections 1, 2 and 4 of the administrative fee statutes. The fee rate appropriately takes into account the administrative expenses incurred, the importance of the matter, the interests of the plaintiff and his economic circumstances, insofar as these are evident from the files.
On July 3rd, 2012 the plaintiff filed a lawsuit expressly against the set objection fee. As a justification, he essentially repeats and deepens his previous lecture. In addition, he explains that the obligation to pay fees also leads to unequal treatment of checked and unverified gun owners. The law does not stipulate a mandatory control of all gun owners and is actually almost impossible. To this extent, it is a typical random check in the sense of an arbitrary use of an individual, in which individual imputability is to be denied, so that the costs of such measures have to be borne by the general public. In the alternative, he also opposes the amount of the fixed fee, which is no longer compatible with the principle of equivalence under tax law after the five to ten minute inspection of the safe storage of his two weapons and ammunition.
The plaintiff requests
to revoke the defendant's notification of fees dated January 26, 2012 and their notification of objection dated May 31, 2012.
The defendant requests
reject the complaint.
She essentially refers to her statements in the objection notice of May 31, 2012 as well as to the final judgment of the Stuttgart Administrative Court of December 6, 2011 - 5 K 4898/10 - in which the court affirmed the admissibility of charging fees for non-suspicion-independent weapons law storage controls. The amount of the fee is also not objectionable, in particular the fee rate is calculated to cover the costs and otherwise does not violate either the principle of equivalence or the principle of equality.
For further details of the state of affairs and the dispute, reference is made to the content of the court files and the submitted official files.
The action is admissible and well founded. The defendant's decision of January 26, 2012 and their decision of objection dated May 31, 2012 are illegal and violate the plaintiff's rights (Section 113 (1) sentence 1 VwGO).
The defendant based the contested decision on Sections 36 (3) and 50 (1) of the Weapons Act (WaffG) in conjunction with Sections 2, 11 of the Municipal Tax Act (KAG) and Section 4 (3) sentence 1 and sentence 3 of the State Fees Act ( LGebG) in conjunction with §§ 1, 2 Paragraph 1 and 4 Paragraph 1 No. 2 of the statutes of ... on the levying of fees for public services dated December 7, 2006 (administrative fee statutes) in the version of the applicable from January 1, 2012 Amendment of December 15, 2011 and No. 18.8.5 of the schedule of fees contained in Annex I of the Articles of Association, according to which the fees for controls according to Section 36 WaffG are 210 to 420 euros. The non-suspicion-dependent retention control standardized in Section 36 (3) of the Weapons Act fulfills all the requirements for a fee collection (I.), however, in the opinion of the Chamber, No. 18.8.5 of the fee schedule is ineffective (II.).
I. With judgments of September 20, 2011 - 5 K 2953/10 - and December 6, 2011 - 5 K 4898/10 - (both JURIS), the judging chamber decided that according to Section 36 (3) sentence 2 WaffG The verification of the safe storage of weapons and ammunition to be carried out (hereinafter: storage control) is an official act that substantively justifies the levying of fees within the meaning of Section 50 (1) WaffG (for the regular review according to Section 4 (3) WaffG affirmed by the BVerwG, judgment of 01.09. 2009, NVwZ-RR 2010, 146); The VGH Baden-Württemberg rejected an application made by the plaintiff in the 5 K 4898/10 proceedings for admission of the appeal by decision of 11.09.2012 - 1 S 385/12. The board adheres to this view even after a renewed examination. After both judgments are known to the parties involved, reference is made to them in order to avoid repetition and, in this respect, no further presentation of the reasons for the decision is made.
The official act on which the fee collection is based in the present case, the retention control carried out by the plaintiff on January 24, 2012, was also carried out lawfully. This was a control within the meaning of Section 36 (3) sentence 2 WaffG, the implementation of which, taking into account the plaintiff's fundamental right to the inviolability of the dwelling according to Article 13 of the Basic Law, is not objectionable and which is also properly, in particular within the framework of Control powers of the weapons authority took place. Nor can it be successfully countered that the plaintiff, as a hunter, will be checked for reliability and personal suitability when issuing or renewing his hunting license, and that there will therefore be no need to carry out a safekeeping check under the law on weapons. Hunting law and gun law are to be viewed as separate regulatory areas. This means that the Weapons Act is the relevant law in the regulatory area of handling weapons and ammunition, including for holders of hunting licenses. As a weapon owner, the holders of hunting licenses are therefore also subject to regular (weapon law) reviews of their reliability and personal suitability in accordance with Section 4 (3) of the Weapons Act (BVerwG, judgment of August 22, 2012, Buchholz 402.5 Weapons Act No. 101, with additional information) as well as verification the safe storage of weapons and ammunition in accordance with Section 36 (3) WaffG.
II. If the reason for this is that there are no grounds for objection to the collection of fees, this does not apply to the amount of the fee set by the defendant. At 210 euros, this is within the range of fees specified in No. 18.8.5 of the schedule of fees. The fee for inspections according to § 36 WaffG in No. 18.8.5. of the fee schedule is ineffective, which leads to the illegality of the fee notice based on it.
The giver of the articles of association has to decide on the amount of a fee rate within the legal limits at its due discretion. The necessary prerequisites for the correct exercise of discretion are fees for public services, except user fees (until the new CISA came into force in 2005, these fees were referred to as "administration fees" to distinguish them from user fees), including the calculation of administration costs and the determination of the fee amount in the With regard to the requirements of Section 11 (2) KAG. According to sentence 1 of this provision, the fee is intended to cover the administrative costs associated with the public service for all those involved in the service. With the cost recovery principle expressed in this way, the legislature has made it clear that when setting fees, as a rule, no cost shortfall may be brought about. According to section 11 (2) sentence 2 of the KAG, however, the economic or other significance of the public service for the fee debtor must also be taken into account when assessing fees. Furthermore, section 11 (2) sentence 4 KAG stipulates that the fee must not be disproportionate to the public service. Sentences 2 and 4 specify the equivalence principle as an outflow from the constitutional principle of proportionality. This enables a comprehensive consideration on the fee debtor side, in which not only the financial burden is examined in isolation, but a comprehensive weighing of benefits and damage is carried out (according to the justification of the new version of the State Fees Act, which contains identical regulations in Section 7; cf. LT-Drs. 13/3477, p. 45).
The fee rate No. 18.8.5 of the schedule of fees used by the defendant in the present case is ineffective, since the defendant assumed that the time required for the preparation and follow-up of the retention control was too high when calculating the fee, and the calculation was therefore not eligible administrative costs contains (1.), the assessment criteria of section 11 (2) sentence 2 KAG were not taken into account when calculating the fees (2.) and the lower fee framework violates the equivalence principle otherwise regulated in section 11 (2) sentence 4 KAG (3. ).
1. The calculation of the framework fee of 210 to 420 euros is based on the hourly rate of two gun inspectors of the public order office of the defendant, which is made up of personnel costs, direct material costs, internal billing, depreciation and imputed costs, in connection with the measured average time required for one Storage control according to Section 36 (3) WaffG of 180 minutes for the first control person (duration of the storage control and duration of preparation and follow-up) and 90 minutes for the second control person (duration of the storage control). In the Chamber's view, the fact that the checks are carried out by two gun inspectors for reasons of the duty of care and the preservation of evidence is not objectionable. The defendant's calculation resulted in an hourly rate of 70.18 euros, which was not challenged by the plaintiff and the Chamber sees no reason to review. However, with the calculated average administrative costs of 315.81 euros (180 minutes for the first control person + 90 minutes for the second control person = 270 minutes x 70.18 euros / hour), the defendant assumed that the time required was too high.
According to the resolution of the articles of association of the defendant's municipal council, the new fee rates are to result from the application of the hourly rate of 70.18 euros to the measured average processing times for the individual fee items (see Annex 2.1 to GRDrs. 149 / 2011). The fee assessment is then taken as the time required for the storage control as such 180 minutes (two control persons of 90 minutes) and for the preparation and follow-up by one of the control persons 90 minutes, without it being apparent where these supposedly measured average processing times come from or To what extent these were measured at all. As far as can be seen, no corresponding surveys by the administration have been carried out beforehand. In contrast to other areas of the defendant, the files submitted to the court on the administrative fee statute do not contain any statement by the competent authority, in this case the weapons authority, on the calculation bases or the calculation of the framework fee of 210 to 420 euros set for controls according to § 36 WaffG. Regardless of this, the Chamber is of the opinion that the 90-minute working time for the preparation and follow-up of a retention check is too high. As has already been stated, the defendant's municipal council did not have any statements from the weapons authorities about the necessary preparatory and follow-up work and the associated time required when the resolution was passed on the fee event in question. At the oral hearing on August 13, 2013, a representative of the defendant explained the preparatory and follow-up work required for a retention control and specified the time. This resulted in an average time required for this work of no more than 60 minutes, whereby times were also taken into account that only occur once on a control day and therefore have to be divided between the several controls carried out on the control day (e.g. agreement of the order of the gun owners to be checked on one Inspection day between the two inspectors). The fact that the rate of 90 minutes is too high and a maximum of 60 minutes should have been set is also shown by the fact that the defendant, when explaining or justifying the fee calculation in its objection notice of May 31, 2012, deviates from the one available to the municipal council when the resolution was passed Documents assumed that the preparation and follow-up work for a retention control also took only 60 minutes. The board is therefore of the opinion that the defendant did not correctly determine the administrative effort when calculating the fee in question and assumed that the time required was at least 30 minutes too long. The chamber does not fail to recognize that the municipal council has a wide margin of appreciation when determining the expenditure. The approach for the legal assessment of whether this margin of appreciation has been adhered to is based on the calculation parameters on which the administrative body has taken as a basis. However, these must be transparent and comprehensible, which is not the case here.As has already been stated, the documents submitted by the administration to the municipal council neither contain a description of the preparatory and follow-up work required for a storage control nor any information on the time. Rather, the municipal council only had the result of what the Chamber considered to be inadequate calculation when it passed the resolution. The calculation of the average administrative costs based on just 60 minutes of time required for necessary preparatory and follow-up work results in an amount of 280.72 euros. Since the amount calculated by the defendant of 315.81 euros exceeds this amount by more than 11%, the deficiency found in the resolution of the municipal council on the fee rate in question is not negligible according to Section 2 (2) KAG.
2. In addition, the assessment criteria of Section 11 (2) sentence 2 of the KAG were not taken into account when assessing the framework fee in question. According to this provision, the economic or other significance of the public service for the fee debtor must be taken into account when assessing fees, which can lead to an increase or decrease in the fee calculated in accordance with Section 11 (2) sentence 1 of the KAG (see Schlabach, fee law of the administration in Baden-Württem-berg, as of April 2011, Section 7 LGebG, No. 112, to the identical provision in Section 7 (2) LGebG). While the economic importance is defined as a measurement principle according to a quantifiable value of the public service that can be determined in money, the other meaning summarizes all advantages but also disadvantages that may be relevant for the fee debtor (according to the justification of the government draft for the identical § 7 Paragraph 2 LGebG, LT-Drs. 13/3477 of August 3, 2004). The fee is therefore not only based on the administrative effort, but also on the positive and / or negative significance of the official act for the person liable to pay the fee. The consideration and weighting of both aspects has to be done in a dutiful exercise of discretion. The setting of an administrative fee, which focuses solely on the administrative effort or solely on the interests of the person liable to pay the fee, is incorrect, unless an official act is of no significance for the fee debtor or has not caused any administrative effort (VGH Baden-Württemberg, decision of 31.01 1995, BWGZ 1995, 369).
According to these principles, in the present case there is a deliberation deficit and thus a discretionary error, since the defendant's municipal council does not include the importance of the storage control according to § 36 para. 3 WaffG for the gun owners in its judgments when exercising its discretion, but only focuses on those of the administration determined administrative costs and adopted its draft articles of association, which is based solely on the calculation of the administrative expenses and which is solely intended to cover the costs of the administrative expenses. The balancing deficit is not ruled out because the official act would be of no importance for the fee debtor. A significance arises from the fact that, depending on the nature and intensity of the measure, the control of the storage of weapons in the private rooms of a weapon owner can basically represent an encroachment on the inviolability of the apartment, which is guaranteed by law, and thus a detrimental effect for the fee debtor (cf. of the Chamber of December 6, 2011 - 5 K 4898/10 -, JURIS).
3. The assessment of fees ultimately also violates the requirement contained in Section 11 (2) sentence 4 KAG that the fee must not be disproportionate to the public service.
While part of the appropriateness test is anticipated by the assessment criteria of Section 11 Paragraph 2 Clause 2 KAG (consideration of the economic or other importance of the public service for the fee debtor), the equivalence principle in the form of the appropriateness test in Section 11 Para. 2 sentence 4 CISA records all interests linked to the public service, in particular the public interest. All interests must therefore be carefully weighed up against one another and against one another. A deficiency in this assessment only leads to illegality if the fee is disproportionate to the public service. That is how it is in the present case.
The fee event in No. 18.8.5 of the fee schedule authorizes the charging of a framework fee (cf. section 11 (3) sentence 1 of the KAG in conjunction with section 12 (1) and (4) LGebG). When calculating such a framework fee, a calculation of the lower as well as the upper range must be made. For the assessment of the lower fee framework, the assumption of the simplest case, the least administrative effort, a high public interest and no or only a small economic or other interest of the fee debtor comes into consideration. For the assessment of the upper fee framework, the assumption of the most extensive case, very difficult investigations, an excessively high economic or other interest of the fee debtor and the non-existence of a special public interest come into consideration (see Schlabach, fee law of the administration in Baden-Württemberg, status: April 2011, Section 12 LGebG, No. 67).
Taking these principles into account, the Chamber assumes that the lower fee framework, i.e. the minimum fee of 210 euros, in very simple cases of storage control, also taking into account the cost recovery principle and the fact that the administrative service is attributable to the gun owner as the initiator, in is grossly disproportionate to the performance of the authorities. The decisive factor here is that the retention control is exclusively or at least almost exclusively in the public interest (see also Section 36.7 of the General Administrative Regulation on the Weapons Act - WaffVwV - of March 5, 2012, Federal Gazette No. 47 p. 3), so that the survey a fee of 210 euros, due to the lack of positive or at least very little positive significance of the storage control for the gun owner, is out of proportion to a faultless storage check of a few or even only one weapon that lasts only a few minutes and therefore does not have any appropriate point of view can be reconciled with the cost recovery principle. The fee event in No. 18.8.5 of the fee schedule therefore violates the equivalence principle regulated in Section 11 (2) sentence 4 of the KAG due to an excessively high lower fee limit and is therefore ineffective.
The defendant's notice of charges dated January 26, 2012, which was issued without a legal basis after all, is therefore unlawful.
Only in addition does the court point out that the contested fee notice with the specifically set fee of 210 euros would not have withstood a legal review even if there was a further reduced fee framework. As with the assessment of the fee by the statutes, the weapons authority must also determine the fee in individual cases within the scope of its discretion on the basis of all assessment criteria to be applied according to Section 11 (2) KAG. Since the storage check carried out at the plaintiff was a very simple case in the sense mentioned above (a check of the safe storage of only two firearms that remained without objection and only lasted between five and ten minutes), the specific fee would also have been set in the amount of 210 euros in accordance with the above statements violate the assessment criteria of Section 11 (2) KAG.
Since the illegal fee notice also violated the plaintiff's rights, the action had to be upheld.
The cost decision is based on Section 154 (1) VwGO.
The appeal was not to be admitted by the judging court (cf. § 124a Paragraph 1 VwGO), since the reasons of § 124 Paragraph 2 No. 3 and No. 4 VwGO are not available.
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