for interim legal protection(see decision of 21.09.2023, VG 1 L 363/23). A closer look at the fee regulations of the federal states and the federal government shows This procedural outcome is not a matter of course. In other federal states or in cases where the federal police intervene, the chances of success for fee notices against climate activists are better. This means that not only do opinions differ on the correct way to deal with climate activists, but also the legal situation.
The decision of the VG Berlin
With its decision of 21.09.2023, the VG Berlin has ruled for the time being: Charging climate activists who tape themselves to the street and are then removed by the police is unlawful in Berlin. However, this result is also due to the particularities of the legal situation in Berlin.
The police in Berlin can issue an order requiring the climate activists to remove themselves from the street (known as an "expulsion order") and, if they do not comply with the order, enforce it (known as enforcement in extended proceedings; see Section 8 para. 1 VwVfG-Bln i.V.m. § Section 6 para. 1 VwVG). However, under certain conditions, it can also be carried out with the will of the person concerned (so-called direct execution; see Section 15 ASOG Bln) or against their will (so-called immediate execution; see Section 8 VwVfG-Bln in conjunction with Section6(2) VwVG ). § Section 6 para. 2 VwVG) without a prior order. If it enforces a prior order by means of the extended procedure or if it intervenes against the will of the person concerned by means of immediate enforcement, it can use direct coercion or proceed by means of substitute performance. According to the legal situation in Berlin, substitute performance only exists if it involves the enforcement of a justifiable act (see Section 8 para. 1 VwVfG-Bln in conjunction with Section 10 VwVG). The police can only demand reimbursement of the costs for direct execution or substitute performance, but only if there is a risk to persons, property or animals, i.e. not for every risk to public safety (see No. 8 of Annex 1 to the PolBenGebV).
The VG Berlin has now ruled in proceedings for interim legal protection, in which climate activists defended themselves against fee notices, that there was no direct execution when the climate activists were removed from the street because the measure did not correspond to the will of the climate activists. It was also not a case of substitute performance, as the removal from the road was not a justifiable act. Even if it were a substitute measure, there would be no danger to persons, property or animals, but only to road traffic. Thus, according to none of the variants contained in No. 8 of Annex 1 to the PolBenGebV, a fee for police action could be demanded.
The legal situation in other federal states and for the federal police
As the levying of fees for measures to maintain public safety and order is not regulated uniformly throughout Germany, but by each federal state itself, the legal situation in other federal states may differ. The same applies to operations by the federal police.
As a result, there is no deviation from the legal situation in Berlin in Schleswig-Holstein. In Schleswig-Holstein, the legal institution of direct execution does not exist at all and a fee for measures of direct coercion can only be charged when exercised against property or animals. It is true that the charging of fees for substitute performance is not limited to the removal of dangers to persons, property or animals (see Section 1 sentence 1 no. 2 VVKVO-SH), so that fees could be charged by climate activists in Schleswig-Holstein if the police's actions were seen as substitute performance. However, as mentioned above, the VG Berlin denied this because there was no justifiable action, and this should not be judged differently in Schleswig-Holstein either. This is supported by the fact that the use of force against those affected by a measure has always been the central application of direct coercion and the reinterpretation of the removal of climate activists as substitute performance would blur the boundaries between the two legal institutions.
In contrast, the legal situation is clearly different from that in Berlin for operations by the federal police, for example. According to the special Fees Ordinance of the Federal Ministry of the Interior and Homeland(BMIBGebV), the use of direct coercion is subject to an unlimited fee both in the extended procedure and in the case of immediate execution (see Annex 1, Section 2, No. 1.4 and 2.2), so that a distinction from substitute performance is not relevant here. The same applies in Bavaria (see Art. 75 para. 3 PAG-Bay in conjunction with § 1 no. 8 PolKV-Bay).
Leon Watermann Fiete Kalscheuer