Compulsory connection and use
The compulsory connection and use is a municipal law provision of the respective municipal ordinance , with which the municipalities regulate the connection to municipal institutions, such as water supply , sewage disposal , waste disposal , street cleaning as well as their use and the use of slaughterhouses, mortuaries and funeral facilities Can prescribe for reasons of public good . The same applies to district heating supply systems . In this respect, the municipalities are authorized to monopolize these health-related tasks and the procurement of district heating in the municipality and thereby eliminate competition . Usage fees are generally charged for using these public facilities . The necessity to encourage the community citizens to use community facilities is based on the fact that many community facilities can only be operated in this way, cost-covering and in line with capacity utilization. The municipalities levy contributions for any development costs incurred when connecting to a public facility.
Importance before and after 1945
The compulsory connection and use was first formulated in Section 18 of the German Municipal Code of 1935 on the basis of the Emergency Act : “Law to remedy the needs of the people and the Reich”, also known as the Enabling Act of March 24, 1933. This formulation was initially adopted by all West German municipal codes after 1945, and after 1990 also in the new federal states . Neither in the Weimar constitution nor in the constitution of the former GDR was there such a passage. Today u. a. the Waste Recycling Act for the Federal Republic of Germany, in which the municipalities are obliged to dispose of waste subject to mandatory disposal. In addition, the avoidance and recycling of waste is regulated. The compulsory connection and use of district heating is based on environmental regulations.
The compulsory use refers to persons who are obliged to only use the community institution in the community area (e.g. morgue, slaughterhouses) and to refrain from using private facilities. The compulsory connection, on the other hand, affects the connection of municipal institutions to properties owned by citizens. It includes the obligation to take all necessary precautions for the connection or to tolerate such precautions being taken on one's own property for a fee. The compulsion to connect a community institution to one's property is always followed by the compulsion to use this institution exclusively. Compulsory use can therefore be prescribed without compulsory connection, but compulsory connection cannot be prescribed without compulsory use.
There is a compulsory connection, especially in the case of piped facilities (sewage disposal, water supply, district heating). However, the cleaning of the streets by a municipal street cleaning company is also subject to the compulsory connection, insofar as an obligation of the owners or other persons with real rights as residents ( residents in front of and behind ) to keep, clean and clear the public streets and paths is prescribed , since there is a causal relationship between the use of the property and the discharge of the rubbish on the roadway. The same applies mutatis mutandis to waste disposal. The municipal institutions or companies are run as own businesses or through the formation of special-purpose associations . It is disputed whether these institutions can also be provided in the legal forms of private law (e.g. as a GmbH ). These institutions represent public matters .
Design of a compulsory connection and use
Politically, the imposition of a compulsory connection and use is always the subject of lively discussions. The main aim is to maintain public health . Fiscal interests alone are not enough. When it comes to the question of whether such a policy should be imposed and how it should be designed, the fundamental rights of the citizens concerned must be observed, in particular the freedom of property , freedom of occupation and general freedom of action , and balanced as gently as possible with the common good and the interests of the general public. The restriction of these personal rights of citizens is always justified if such a statute is required for reasons of public good in general and the compulsory connection and use is reasonable in individual cases. It is undisputed that there is at least no legal provision that z. B. expressly prescribes sewage disposal through a sewer. Such a compulsory connection would contradict the supranational law of the directive of the European Council of May 1, 1991 on the treatment of municipal wastewater.
General requirement
With regard to the general freedom of action of the citizens, with regard to the necessity of such measures, it is repeatedly argued that the citizens can achieve the goals that are connected with a connection and use obligation (preservation of public health, environmental protection), through private initiative more cheaply or more effectively and Practice according to regulations even before public development (e.g. higher cleaning standard of a decentralized wastewater treatment plant compared to a municipal sewage treatment plant ). The decisive factor, however, is whether the compulsory use or the compulsory connection and use is required for an overall view for the entire municipality. In the case of municipal projects of this type, the necessities of this measure must be examined. A chargeable use and a chargeable connection for as large a group of authorized and obligated parties as possible can make sense because this is the only way to enable the establishment to operate at full cost and in line with capacity utilization. However, fiscal interests alone are not enough.
Occasionally it also happens that community citizens are no longer able to pursue their profession or can no longer pursue their profession as before because the community has monopolized the field of activity of those citizens as a result of the compulsory connection and use. Reasonable considerations of the common good are sufficient for the restriction of the freedom of occupation if the exercise of the occupation by the affected citizens is not completely prevented, but only the way in which this occupation can be exercised by the citizens is influenced. So z. For example, the sphere of activity of private cleaning companies is not entirely prevented by the compulsory connection and use of a municipal street cleaning company, since the cleaning of buildings remains possible. It looks different z. B. in the compulsory use for a municipal funeral home. Objectively, the profession of undertaker is no longer practicable in the municipality. It is therefore a prerequisite for such a compulsory use that there are significant dangers for extremely important common goods (e.g. health of the community citizens).
Reasonableness for the citizen
If the imposition of compulsory connection and use is required for reasons of public good, this must still be reasonable in individual cases. Citizens have often bought private sewage treatment plants / decentralized wastewater treatment plants, street cleaning machines and the like or have their own wells. Due to a compulsory connection and use, ownership of these systems can no longer or no longer be used as before. The restriction on the use of these systems caused by the compulsory connection and use reflects the social bond of property. If the now missing usability has an expropriating effect ( special sacrifice , special severity), such a content and limitation determination to preserve the reasonableness may be subject to compensation.
In addition, hardship clauses exist in the respective statutes to avoid cases of unreasonableness. Conceivable is z. For example, for certain properties on which no waste is generated for disposal in accordance with the Recycling Waste Act, exceptions to the compulsory connection and use of waste disposal, which are subject to charges, are provided. This could be the case with self-composting or the use of a composting toilet , also in connection with a gray water system . It would also be unreasonable for a brewery to be obliged to connect and use the municipal water supply if the characteristic taste of the beer is due to its own well.
Appeal
As soon as the municipality has issued the compulsory use or the compulsory connection and use on the basis of a lawful relevant statute and made it accessible to all citizens, every property owner can be obliged to connect. This is the case, in particular with line-bound systems, if z. B. on a property that is accessed by a road, wastewater is generated and there is a public line in front of the property. Legal action is then opened against the notice of obligation before the administrative courts, before which the notice of obligation can be challenged if z. B. on the sample property there is no waste water for disposal. In this action for avoidance, not only the legality of the decision, but also the legality of the articles of association is checked incidentally. After the judicial process has been exhausted, there is still the possibility of a constitutional complaint . In some federal states there is also a right to apply for a standards control procedure in accordance with Section 47 (1) No. 2 VwGO . In Bavaria, the popular lawsuit comes under consideration.
Individual evidence
- ^ Reichsgesetzblatt No. 6 of January 30, 1935 pp. 49-64 (PDF) Internet portal Westphalian history. Retrieved January 22, 2019.
- ↑ Reichsgesetzblatt No. 25 of March 24, 1933 p. 141 . Bavarian State Library. Retrieved January 22, 2019.
- ↑ RL 91/271 / EEC of May 1, 1991.
