Sovereign tasks are activities "that a public community ( state , municipality or other corporation ) has to fulfill by virtue of public law". An activity is sovereign if it is derived from state authority . This is the case if an activity has been assigned to a public corporation by law or similar legal norms ( statutes ) or is reserved for it according to historical development. Only the task (purpose) and the means to achieve the purpose together are suitable to comprehensively characterize a sovereign activity. Public law is used, which is characterized by a superordinate and subordinate relationship. The state exercises sovereign power in the performance of sovereign tasks , the authorities perform tasks with potentially coercive violence. The theory of subjectivity assumes that public law exists when a bearer of sovereign power is involved in precisely this capacity. Public law entitles and obliges the state to unilaterally enforce its powers against citizens and companies . Official tasks are originally to be performed by public authorities.
In German law, the provision of Basic Law makes a functional reservation for sovereign tasks . According to this, the exercise of sovereign powers is “usually” to be assigned to members of the public service as a permanent task . Thus, the provision creates space for exceptions of a quantitative and qualitative kind. The functional reservation of Article 33.4 of the Basic Law is intended to ensure that the exercise of sovereign powers is a regular task of the special safeguards institutionally guaranteed by Article 33.5 of the Basic Law for the civil service subject to qualified, loyal and law-abiding fulfillment of tasks. This not only ensures a functional reservation for civil servants in the sense of constitutional law towards other public employees, but also a more extensive functional reservation for public employees towards private third parties. Civil servants are entrusted with sovereign tasks, because in the case of appointment to civil servant status, sovereign tasks or security tasks must be transferred according to § 5 BBG .Paragraph 4 of the
With sovereign tasks originally institutions are responsible, in the legal form of legal entity under public law act as immediate ( federal and state agencies ) and indirect state administration ( regional , occupational and other bodies and institutions , municipal properties and owned companies or agencies and foundations public law , and also by private individuals ).
Companies under private law can also perform sovereign tasks under Article 33 (4) of the Basic Law. It is necessary that the required sovereign powers are granted to the company by law ("lending"). A collateral must be made by or pursuant to statute. In the sense of this provision, a borrower also acts as "someone" "in the exercise of a public office entrusted to him", namely in the performance of the public tasks assigned to him using sovereign powers. The case concerned the use of non-civil servants with the authority to temporarily order special security measures. This means that core areas of intervention management can also be carried out by private authorities. In any case, the exercise of sovereign powers is involved when powers to encroach on fundamental rights in the narrower sense are exercised, that is, when the public authority, through orders or coercion, directly restricts freedoms protected by constitutional rights.
The area of sovereign tasks is very large. This includes tax collection , regulatory policy , criminal prosecution up to building supervision and monument protection . Even regulators and the municipal public services are part of State's responsibilities. If the market fails or if it delivers undesirable results, the sovereign provision of goods and services can be described as services of general interest. Municipal public institutions are the essential means for the state to provide services of general interest. To finance sovereign tasks, the state can levy taxes, incur debt , create money and / or sell assets.
According to UStG , , Paragraph 1 UStG , whoever is entrusted with the exercise of sovereign tasks is not subject to VAT . The exercise of public authority is not a commercial or professional activity, so there is no sales tax liability. The UStG defines legal persons under public law only in the context of their operations of a commercial nature or their agricultural and forestry activities as well as in the context of some of the activities listed in § 2 (3) UStG as entrepreneurs . Conversely, legal persons under public law are not commercially active and not entrepreneurs if they perform sovereign tasks. To do this, the following requirements must be met cumulatively:Paragraph 3 Clause 1
- The delegating community must itself have the legal authority to carry out the activity,
- the delegation requires a legal basis and
- the acting person or organization must be authorized to issue orders themselves.
Businesses of a commercial nature (BgA) do not belong to those businesses that perform sovereign tasks (Section 4 (5) KStG). Legal persons under public law are only entrepreneurs if they do not perform sovereign tasks.
- Thomas Brandstätt, Process Management in Municipal Administration , 2000, p. 22 f.
- Dieter Keidel, Police and Police Violence in Emergency Cases , 1973, p. 28
- BVerfGE 9, 268, 284; 119, 247, 260 f.
- BVerfG, judgment of January 18, 2012, Az .: 2 BvR 133/10
- BVerwG, judgment of 6 August 2010, Az .: 3 C 35.09
- BGH, judgment of October 14, 2004, Az .: III ZR 169/04 = BGHZ 161, 6, 10