Budgetary principles

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Budgetary principles are the principles of budget preparation and budget execution that must be observed in the budgetary management of public budgets in the federal , state , municipal , municipal associations and other budgetary bodies ( institutions under public law , corporations under public law ). Its aim is to protect the public administration and the public from possible losses, incorrect data and incorrect information as far as possible and to ensure uniform budget management and proper financial management throughout Germany.

General

These principles essentially correspond to the principles of proper bookkeeping and are specifically tailored to public budget management. They are anchored in law , in particular in the Basic Law (GG), in the law on the principles of budget law of the federal government and the states ( Budget Principles Act , HGrG) and the Federal Budget Code (BHO) in the individual state budget regulations (LHO) - containing more specific requirements - and the respective Municipal regulations (GemO) of the federal states, which contain more general target regulations (e.g. § 75 GemO NRW ). At the federal level, the Budget Principles Act initially regulates that budgetary management can be structured either camerally or " state double " ( Section 1a HGrG).

The individual principles

The budget principles developed by practice and academia comprise a set of 10 regulations that are binding on public administration.

  • Budget principle of unity and completeness of the budget ( Article 110.1 sentence 1 GG):
Unity ( Art. 110 (2) GG, § 8 HGrG, § 11 , § 12 , § 26 BHO) requires that income , expenditure and commitment authorizations of a regional authority are to be summarized in a single budget (unit budget). Completeness ( Art. 110 (1) GG, § 8 , § 12 HGrG, § 11 , § 15 BHO) requires a complete and unabridged recording of all expected income, expenditure and probably required commitment authorizations (gross principle) without offsetting . Special budgets are only permitted for commercially established state-owned companies and special funds as well as for loan financing. This indirectly results in the ban on shadow households, secret funds or "black funds".
He calls for transparency for interested citizens in all phases of the budget cycle, because citizens have a right to know how their taxes have been used. It is compatible with the principle that only the overall plan is published in the Federal Law Gazette.
  • Principle of prior authorization ( Art. 110 (2) GG):
The budget law must be passed by parliament before the start of the budget year. The principle of prior art requires the budget to be adopted in good time before the start of the financial year to which it relates. Budgets are to be introduced into the parliamentary discussion in good time so that, if the process goes normally, they can be passed on in good time ( Section 30 BHO).
  • Principle of annuality ( Article 110, Paragraph 2 of the Basic Law):
For each financial year, expenditure and income are to be drawn up in a budget. Exceptions are the so-called transferability for the continuation of projects and household leftovers.
  • Principle of economy and efficiency ( Art. 114 (2) sentence 1 GG, § 6 HGrG, § 7 BHO):
The administration is required to use the budget economically ( Section 7 (1) BHO). The minimum principle (achieving a certain goal with as few resources as possible) and the maximum principle (achieving the greatest possible benefit with given resources) apply. Section 7 (2) BHO requires a previous profitability study for all financial measures, which must also include the risk distribution.
  • Principle of total coverage (non-affection; § 7 HGrG, § 8 BHO):
All income must not be earmarked, but serve as cover funds for all expenses. Exceptions are contrary legal provisions, funds from third parties or the budget provides for deviations.
  • Budget principle of the due date ( § 8 HGrG, § 11 BHO):
Only those expenditures may be budgeted that are due in the budget year and therefore have a cash impact.
  • Budget principle of budget accuracy and budget clarity ( § 10 , § 11 HGrG):
The unwritten material requirement of budget accuracy and the formal requirement of budget clarity are to be interpreted from the provisions, which correspond to the design principles of balance sheet truth and balance sheet clarity . Both commandments are not strict legal requirements, but merely require the avoidance of the clear opposite. Clarity is achieved through the structure ( § 13 BHO). Budgetary clarity also includes the systematic, meaningful structure of the budget and the identification of its individual items. The requirement of truth also includes the demand for a balanced budget.
Income and expenses are to be calculated separately. Exceptions are reimbursements, correction of overpayments and ancillary costs of acquisition and ancillary business
  • Budgetary principle of subject specialization or individual budgeting ( Section 12 Paragraph 4 HGrG, Section 17 Paragraph 1 BHO):
Income is estimated separately according to the reason for its origin, expenditure according to purpose and amount. Commitment appropriations and expenses may only be used for the purpose stated in the budget. Exceptions are global under-spending and global overspending , which are not earmarked but shown with a lump sum.
Specialty ( § 15 , § 27 , § 19 , § 20 , § 46 BHO):
(1) Qualitative specialty : funds to be spent may only be spent for the purpose stated in the budget. Exceptions are expenses for which mutual or unilateral eligibility is permitted either in general (in the area of ​​personnel expenses ) or by means of a special declaration in the budget.
(2) Quantitative specialty : funds to be spent may only be spent up to the amount shown in the budget. Exceptions are excessive and unscheduled expenses in the event of an unforeseen and unavoidable need; In accordance with Art. 112 GG, they require the approval of the Federal Minister of Finance in the area of ​​the federal budget.
(3) Temporary specialty : funds to be spent may only be spent during the period for which the budget is valid. This does not apply to expenditure for which portability is permitted either in general (expenditure on investments and expenditure from earmarked income) or by means of a special declaration in the budget (transferability of expenditure).

Violation of the principles

In public service contracts, at least for those involved in households, it is stipulated that “the budgetary principles must be adhered to.” The violation of the budgetary principles can be punished as “budget infidelity ” - a subset of breach of trust - according to Section 266 of the Criminal Code . In 1997, however, the BGH had made it clear that there was no such offense of “budget breach” which “alone threatens the unlawfulness of improper budget decisions with a penalty.” The violation of current budget law or budget principles is therefore not immediately punishable under Section 266 (1) StGB . Rather, it must be proven that the public sector suffered a financial disadvantage as a result of the improper act. The subjective fact of § 266 StGB requires knowledge of the violation of budgetary principles. Criminally relevant, non-compliant damage to the budget to be managed comes into consideration in particular if payments are made without corresponding consideration, to which there was clearly no entitlement within the framework of contractually regulated legal relationships. Regardless of the equivalence of performance and consideration, according to the BGH, budget infidelity comes into consideration if a budget overdraft necessitates an economically significant borrowing, if the budgetary legislature's ability to dispose is severely impaired and the expenditure of funds, in particular, restricts its political authority. Unlike in the normal case of infidelity, there is no personal enrichment of the perpetrator in the case of household infidelity.

Under civil law, legal transactions that violate current budgetary law are not void under Section 134 of the German Civil Code (Prohibition Act) , but rather in particularly serious cases because of immorality ( Section 138 (1) of the German Civil Code).

The principles of thrift and economic efficiency are intended as legal control norms to create an external framework for the municipal development and creative leeway in order to prevent such measures that are absolutely incompatible with the principles of sensible economic activity. The principle contained therein that the state may not “give anything away” must be observed by all state and local authorities, regardless of the basis on which they operate. A violation of this principle leads to the nullity of contracts which have as their object a donation to private individuals without consideration and which cannot be regarded under any aspect as being justified by the pursuit of legitimate public tasks within the framework of an administration based on the principles of the rule of law.

literature

Individual evidence

  1. ^ A b Josef Isensee / Paul Kirchhof, Handbook of Constitutional Law of the Federal Republic of Germany , 2007, p. 1189 f.
  2. ↑ BVerfGE 65, 283, 291
  3. ↑ Josef Isensee / Paul Kirchhof, Handbook of Constitutional Law of the Federal Republic of Germany , 2007, p. 1195
  4. ↑ BGH, judgment of November 4, 1997, StR 1 293/97; ("Bow wave fall")
  5. ↑ BGHSt 43, 293
  6. ↑ BGH, NStZ-RR 2002, 237 f.
  7. ↑ BGH, wistra 1998, 103, 104
  8. ↑ BGH, StV 1986, 430
  9. ^ OVG Rheinland-Pfalz, DVBl. 1980, 767, 768; see. also BVerwGE 59, 249, 252f .; OVG NRW, DÖV 1991, 611f.
  10. ↑ BGHZ 47, 30, 39 f.
  11. ^ BGH, judgment of September 17, 2004 , Az.V ZR 339/03, full text.