Referendum on the disclosure of the partial privatization agreements at Berliner Wasserbetriebe

A bill on the disclosure of the partial privatization contracts at Berliner Wasserbetriebe (BWB) was adopted by referendum in February 2011. However, it remains unclear whether the draft law will be implemented, as the Berlin Senate considers it constitutionally questionable. The draft law stipulates that all contracts for partial privatization must be disclosed and are ineffective if this is not done. The Senate assumes that the subsequent ineffectiveness of existing contracts violates Berlin constitutional law and federal law. A constitutional review could declare the law null and void under Article 31 of the Basic Law . For this reason too, the Senate was not in agreement immediately after the vote on how to deal with the result. The referendum of February 13, 2011 is the third in the history of Berlin and the first to be successful.

Official model of the voting slip for the Berlin referendum on the disclosure of the partial privatization agreements at the Berliner Wasserbetriebe.

background

Partial privatization of Berliner Wasserbetriebe

In 1999 the State of Berlin sold 49.9% of the municipal water supplier Berliner Wasserbetriebe to RWE , Vivendi (now Veolia ) and Allianz . The consortium paid DM 3.3 billion (EUR 1.69 billion) for the minority stake in BWB,  making it the largest asset deal in the history of Berlin. Ten percent of the proceeds were invested in a future fund that supports innovative companies and projects in the capital. The majority of the billions in revenue was, however, needed to make up the budget deficit in the 1998 budget year.

In order to facilitate the sale, that changed the Berlin House of the Berlin business law and the Berlin Water Law and decided on 29 April 1999 by roll call voting against the opposition and some dissenters from the CDU and SPD, the partial privatization law . The opposition parties PDS and Bündnis 90 / Die Grünen sought a constitutional review because they questioned the legality of the law on the partial privatization of the BWB. The law stood up to scrutiny by the Berlin Constitutional Court.

Ownership of the Berliner Wasserbetriebe

	State of Berlin	RWE AG	Vivendi SA	Allianz Group
subsidiary		RWE Aqua GmbH	Compagnie Générale des Eaux Deutschland GmbH	Allianz Capital Partners GmbH
Subsidiary		RWE Umwelt AG
Shares		↓ 45%	↓ 45%	↓ 10%
Shares	involved with a majority of ↓ 50.1%	Berliner Wasserbetriebe Beteiligungs AG ↓ 49.9%
	Berlinwasser Holding + Berliner Wasserbetriebe A.ö.R.

The private investors have a 49.9% stake in Berlinwasser Holding through a private equity company and not directly in BWB. The State of Berlin is the majority shareholder in Berlinwasser Holding and BWB (public law institution), each with 50.1%. Initially, Allianz Capital Partners had a ten percent stake in Beteiligungs-AG, which RWE and Vivendi took over. Vivendi's stake was transferred to its successor company Veolia Environnement in 2002 .

The State of Berlin acquired the shares from RWE in April 2011 and the shares from Veolia in September 2013; the Berliner Wasserbetriebe are once again fully owned by the state.

Contents of the consortium agreement

Essential agreements between the companies involved and the State of Berlin:

• The costs for the water supply, the discharge of the wastewater and the rainwater discharge and its treatment remained at the 1998 level until the end of 2003.
• Terminations for operational reasons are excluded until 2014.
• The high investments of Berliner Wasserbetriebe in small and medium-sized companies will be retained.
• In order to strengthen Berlin as a business location, the investors undertake to relocate their company headquarters to Berlin.
• Research into environmentally friendly technologies
• Maintaining the legal form of an institution under public law in order to offer drainage free of sales tax .

In the Partial Privatization Act , the private partners were determined to pay interest on the capital they brought in: "The average return on ten-year German government bonds over a period of 20 years preceding the respective calculation period is considered to be the appropriate imputed interest on the capital required for business operations."

The way to the referendum

In June 2007 the citizens' initiative Berliner Wassertisch initiated the referendum Our water under the title Ending Secret Contracts - We Berliners want our water back . After it was initially not possible to collect the required 20,000 signatures for the application to initiate a referendum on time, the initiative extended the collection by one month. On February 1, 2008, she submitted 36,062 valid signatures.

On March 4, the Berlin Senate declared the referendum invalid, against which the initiative filed a complaint. The Constitutional Court of Berlin ruled on October 3, 2008 that the Senate only had the right to declare petitions to be invalid in the event of obvious unconstitutionality or material inadmissibility. This is not the case with the present referendum and is therefore permissible. The court did not rule on the question of whether the referendum violates the Berlin constitution or federal law.

The subsequent compromise negotiations between the Senate and the initiative failed, so that on June 28, 2010 the collection of signatures for the actual referendum began. On October 27, 2010, the initiative handed over around 265,400 signatures. Together with the signatures given at the citizens' offices, 280,887 valid signatures were given on November 9th.

As early as July 8, 2010, the Berlin House of Representatives passed the "Second Act to amend the Berlin Freedom of Information Act (IFG)", which made it easier to inspect files: The public authorities have committed to entering into contracts with companies that provide public services to publish ex officio - if there is a public interest in information.

On October 30, 2010, three days after the referendum was submitted, the daily newspaper taz published the consortium agreement between the State of Berlin and the private investors. On November 10, 2010, the State of Berlin and Veolia also disclosed the contract for partial privatization, including ancillary contracts.

The referendum was controversial among the parties in the Berlin Senate. A unilateral amendment of the treaties - as the initiators of the campaign achieved - violates Berlin constitutional law and federal law . In this respect, parts of the desired set of rules of the referendum would be ineffective if the State of Berlin were to subsequently unilaterally change the treaties. In addition, the Senate argued that the bulk of the contracts have already been published. However, the initiators of the Berliner Wassertisch campaign do not share the Senate's constitutional concerns. Despite the publication of the treaties, the supporters are sticking to the referendum and are seeking clarification by the Constitutional Court , which would result in further public costs. According to the constitution, however, the vote had to take place - regardless of the fact that the contracts were already publicly available.

Subject of the referendum

Around 2.47 million eligible voters were called on February 13, 2011 to vote on the following bill by referendum:

• All existing and future contracts, resolutions and ancillary agreements for the partial privatization of Berliner Wasserbetriebe should be disclosed.
• They would require public scrutiny and discussion.
• They are ineffective if they are not concluded and disclosed in accordance with this Act.

Arguments of the Senate and the Berlin House of Representatives

• The referendum is outdated and superfluous because the contracts for the partial privatization of Berliner Wasserbetriebe have already been published in full.
• The existing Freedom of Information Act (IFG) goes further than the draft law that was put to the vote: It regulates that contracts must be published if the interest in information outweighs the interest in private confidentiality.
• The law that was put to the vote is not compatible with the constitution, since contracts that are not publicly accessible are supposed to become ineffective. The Senate sees this as a constitutional violation.
• The Berlin House of Representatives points out that the water contracts have already been disclosed in a legally secure manner and therefore considers the referendum to be irrelevant.
• The bill submitted by the Berlin water table is in part unconstitutional. For this reason, the House of Representatives could not approve the referendum.

Arguments of the "Berlin Water Table" initiative

• The water contracts would not have been published in full.
• The MPs would lie when it comes to Berliner Wasserbetriebe.
• The IFG alone is not enough. There must be legal consequences if contracts are not made publicly available.
• Secrecy is rejected. With the disclosure of the contracts, a cost-effective remunicipalisation of the BWB should take place and the costs for water should decrease.

Public costs of the referendum

The initiators of the referendum assume that the referendum will have no impact on the budget of the State of Berlin . However, the state of Berlin points out that the costs cannot be estimated. The public costs for the implementation of the referendum amount to 1.6 to 1.85 million euros.

Result of the referendum

Map showing the regional distribution of participation in the referendum

The referendum was passed with 678,507 votes. The majority - and at the same time at least a quarter of the approximately 2.5 million voters - had to vote “yes”. Participation in the vote was 27.5%, a majority of 98.2% of the participants voted yes. The quorum of 25% of those entitled to vote who had to vote was also reached.

Result according to the information from the head of the regional vote in Berlin in relative sizes

No.	district	Participation (voting area)	Yes (participant)	Yes (voting area)	No (participant)	Invalid (participant)
1	center	22.5%	97.8%	22.0%	2.1%	0.1%
2	Friedrichshain-Kreuzberg	27.1%	98.2%	26.7%	1.7%	0.1%
3	Pankow	28.4%	98.4%	28.0%	1.5%	0.1%
4th	Charlottenburg-Wilmersdorf	24.4%	98.4%	24.0%	1.5%	0.1%
5	Spandau	25.5%	97.9%	24.95%	2.0%	0.1%
6th	Steglitz-Zehlendorf	32.5%	98.2%	32.0%	1.7%	0.1%
7th	Tempelhof-Schöneberg	28.8%	98.2%	28.2%	1.6%	0.1%
8th	Neukölln	26.2%	97.8%	25.6%	2.0%	0.2%
9	Treptow-Koepenick	33.2%	98.6%	32.8%	1.4%	0.1%
10	Marzahn-Hellersdorf	26.7%	98.3%	26.3%	1.6%	0.1%
11	Lichtenberg	23.6%	97.8%	23.1%	2.1%	0.1%
12	Reinickendorf	30.2%	98.2%	29.7%	1.7%	0.1%
	Berlin (overall)	27.5%	98.2%	27.0%	1.7%	0.1%
Colors of the district numbers: formerly west , formerly east , west / east fusion district

Result according to information from the head of the Berlin regional vote in absolute terms

No.	district	Eligible voters (absolute)	Request signatories	Yes votes	Vote no	Invalid	Participants (absolute)
1	center	196.830	19,804	43.214	921	58	44.193
2	Friedrichshain-Kreuzberg	170.710	28,981	45,530	774	49	46,346
3	Pankow	282.996	36,125	79.193	1,212	64	80,469
4th	Charlottenburg-Wilmersdorf	216,662	27,030	52,078	782	39	52,899
5	Spandau	162,532	11,697	40,554	835	45	41,434
6th	Steglitz-Zehlendorf	216.913	29,961	69,328	1,199	66	70,593
7th	Tempelhof-Schöneberg	232.278	27,782	65,610	1,099	87	66,798
8th	Neukölln	199,512	21,025	51.131	1,067	93	52.291
9	Treptow-Koepenick	199,688	25,929	65,430	911	49	66,390
10	Marzahn-Hellersdorf	202,537	16,671	53,262	840	54	54,156
11	Lichtenberg	203,868	18,561	47.012	1,020	43	48,070
12	Reinickendorf	181,762	17,321	53,893	930	45	54,868
	Berlin (overall)	2,466,288	280,887	666.235	11,590	692	678.507
Colors of the district numbers: formerly west , formerly east , west / east fusion district

Web links

• Head of regional coordination for Berlin
• Berlin water table
• Berlin alliance against privatization
• Do you want to know ...

Individual evidence

1. ↑ Senate disputes correct conclusions from referendum . In: Die Welt , February 15, 2011
2. ↑ ^{a b} consortium agreement. (PDF) Das Land Berlin, June 14, 1999, p. 175 , archived from the original on February 1, 2011 ; Retrieved February 1, 2011 . 
3. ↑ ^{a b c} Ewald. B. Schulte: Berlin Senate approves the sale of the water company . In: Berliner Zeitung , June 19, 1999
4. ↑ Daniela Ochmann: Privatization of public corporations that preserve legal form - illustrated on the holding model for the partial privatization of Berliner Wasserbetriebe . In: Writings on economic administration and procurement law . Volume 4, 2005, ISBN 3-8329-1019-0 , p. 22.
5. ↑ Printed matter 13/3613 of the Berlin House of Representatives, 13th electoral period, 62nd session on April 29, 1999, roll-call vote on the law on the partial privatization of Berliner Wasserbetriebe, p. 4546 f.
6. ^ Act on the partial privatization of Berliner Wasserbetriebe (TeilprivatG) of May 17, 1999; Law and Ordinance Gazette (GVBl.) Of the State of Berlin, p. 183.
7. ^ Decisions of the constitutional courts of the federal states, Volume 10. Contents of the decisions of the constitutional court of the federal state of Berlin. In: No. 8: June 17, 1999 VerfGH 42 A / 99. Senate Department for Justice, June 17, 1999, archived from the original on February 11, 2011 ; Retrieved February 11, 2011 . 
8. ↑ Daniela Ochmann: Privatization of public corporations that preserve legal form - illustrated on the holding model for the partial privatization of Berliner Wasserbetriebe . In: Writings on economic administration and procurement law . Volume 4, 2005, ISBN 3-8329-1019-0 , p. 37.
9. ↑ Daniela Ochmann: Privatization of public corporations that preserve legal form - illustrated on the holding model for the partial privatization of Berliner Wasserbetriebe . In: Writings on economic administration and procurement law . Volume 4, 2005, ISBN 3-8329-1019-0 , p. 29.
10. ↑ Law on the partial privatization of Berliner Wasserbetriebe dated May 17, 1999. (PDF; 26 kB) State of Berlin, May 17, 1999, archived from the original on February 11, 2011 ; Retrieved February 11, 2011 . 
11. ↑ Chronology. Berlin water table, archived from the original on February 11, 2011 ; Retrieved February 11, 2011 . 
12. ↑ Berlin Alliance starts three referendums . In: Der Tagesspiegel , June 18, 2007
13. ^ Berlin - overview of popular initiatives and popular initiatives. More democracy e. V. Landesverband Berlin / Brandenburg, archived from the original on February 24, 2011 ; Retrieved February 24, 2011 . 
14. ^ The head of the state vote: Popular initiative 2010 on the disclosure of the partial privatization agreements at the Berliner Wasserbetriebe. In: wahlen-berlin.de. Office for Statistics Berlin-Brandenburg, November 23, 2010, archived from the original on February 24, 2011 ; Retrieved February 24, 2011 . 
15. ↑ Second law amending the Berlin Freedom of Information Act of July 8, 2010. Law and Ordinance Gazette for Berlin , July 22, 2010.
16. ↑ The Berlin Water Contracts. (PDF; 7.7 MB) In: taz.de. taz , p. 198 , archived from the original on February 24, 2011 ; Retrieved February 24, 2011 . 
17. ↑ Senate discloses contracts for the partial privatization of Berliner Wasserbetriebe. In: berlin.de, the official capital city portal. The State of Berlin, archived from the original on February 11, 2011 ; Retrieved February 11, 2011 . 
18. ↑ Berlin Water Contracts published. Press release. Veolia Wasser, November 10, 2010, archived from the original on February 11, 2011 ; Retrieved February 11, 2011 . 
19. ↑ The head of the state vote: 2011 referendum on the disclosure of the partial privatization agreements at Berliner Wasserbetriebe. (No longer available online.) Berlin-Brandenburg Statistics Office 2011, February 11, 2011, archived from the original on February 24, 2011 ; Retrieved February 12, 2011 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.  
20. ↑ ^{a b} Sabine Beikler: Referendum: Final spurt for water table . In: Der Tagesspiegel , January 19, 2011
21. ↑ Popular initiative for water despite open contracts. In: rbb-online.de. November 23, 2010, archived from the original on January 27, 2011 ; accessed on January 27, 2011 : "According to the constitution, the vote must take place formally, although the treaties are known." 
22. ↑ dpa: Around 615,000 votes for success in referendum. In: Welt Online. Axel Springer Verlag, archived from the original on February 11, 2011 ; Retrieved February 11, 2011 . 
23. ↑ ^{a b c d e} The head of the Berlin regional vote: "Official information on the referendum on the disclosure of partial privatization contracts" at the Berliner Wasserbetriebe.
24. ↑ Referendum on water companies on February 13th . In: Märkische Oderzeitung , November 23, 2010
25. ↑ ^{a b} Result of the referendum on the disclosure of the partial privatization agreements at Berliner Wasserbetriebe on February 13, 2011