Earmarking
The term earmarking generally means that certain funds (or contributions in kind ) may only be used for legally or contractually defined purposes .
General
The earmarking is intended to ensure that the legislature or the contractual partner has the certainty that money or items will only be used for an intended purpose and that they will not be used for any other purpose. Earmarking is an exception to the current principle of freedom of contract , which also guarantees the free use of money or things. However, there are areas of law for which purpose limitation is provided; this includes banking , donations , budget law and data protection .
Bank loans
In general, there are often certain loan conditions in the loan agreement for all bank loans , which, among other things, restrict the purpose of the loan amount more or less strictly. Usage there is the purpose, may be used for the loan amount ( consumer credit , investment credit , mortgage , effect collateral loan , aval , assigned development loans ). In the case of consumer loan contracts , the private purpose is even a prerequisite for the application of the consumer term ( § 491 BGB). Here can banks also require a reference example in consumer and real estate loans. Only a few types of loans do not have a particular or just a generally formulated purpose ( overdraft , overdraft and its kinds roll-over credit , revolving credit and stand-by credit ). The specification of a specific purpose in the loan agreement limits the granting of credit to the use already specified by the borrower in the loan application . If the borrower does not adhere to the intended purpose, he violates the loan agreement and exposes himself to a possible loan termination for good cause .
Banks grant real estate loans and mortgage loans generally only against collateral in the form of real estate liens ( mortgages , land charges or rare mortgages ). A security agreement ensures the (contractual) purpose limitation between the real estate lien and the loan . In particular, if you have issued a one-off declaration of valuation, you may not unilaterally cancel the earmarking agreed upon.
donate
In the case of donations , a purpose is usually already assigned with the appeal for donations. Due to the present legal transaction of the donation , the recipient of the donation is bound to the earmarked purpose stated by the donor. It is a so-called special donation according to Section 525 of the German Civil Code (BGB) , in which the giver can demand that his / her condition be fulfilled . If the recipient does not use the donation received as agreed, the donor can claim his financial contribution back. The donation is not given in the case of anonymous donation campaigns such as the donation can . Then it is a mere donation for a specific purpose within the meaning of Section 812 (1) sentence 2 (2nd case) BGB, which is repayable if it is used for a purpose other than intended . The right to donate in the BGB is often overlaid by the public right of street collections . In order to avoid possible repayment claims, the recipient of the donation should not determine the purpose too narrowly from the outset, should not give too precise information about the purpose of the donation in the context of an appeal for donations, and should contact the donor in good time if the purpose of the donation should change. According to Section 62, Paragraph 3, No. 3 of the Tax Code , earmarking of donations is only significant if they are permanently added to the property of the recipient of the donation and are not used promptly.
International aid agencies call mostly earmarked donations ( English restricted gifts ) when, for example, to raise funds for the victims of a particular natural disaster advertise. Then the question arises whether and how donation organizations may deviate from a purpose limitation. In states with common law which can then Cy-près doctrine cause overpaid donations must be returned to the donors.
Budget law
The earmarking in general government is as an exception to the generally accepted the principle of universality provided. However, a deviation from the overall coverage principle is possible under strict conditions, whereby the one or two-way coverage must be established by means of a purpose limitation note (designated coverage ). Earmarkings are only permitted if they are prescribed by law or result from the origin or nature of the ingestion. The earmarked income is removed from the overall coverage and is no longer available to finance all expenses, but only as cover funds for certain expenses. This includes expenditures for investments and expenditures from earmarked income ( § 15 Abs. 1 HGrG ). At the municipal level, this is only possible in exceptional cases. The fee budgets are excluded from the overall coverage principle. The respective fees should be calculated to cover costs. This is only possible if other sources of income are not used for financing. This means that fee income is earmarked for the respective tasks and does not fall into the freely available mass of the household. This is particularly the case with independent municipal authorities (municipal waste disposal or water management), whose fee income must be used specifically for the tasks assigned to them. For example, the garbage fees may only be used for waste disposal. If the income exceeds the expenditure in this area, the surplus may not be used for other purposes, but is earmarked for a reserve . Such earmarking increased transparency for citizens because it enabled them to track the exact use of certain revenues. This transparency is lacking in the overall coverage principle, because the citizen can determine a certain expenditure (booked in the budget under a precise "title"), but not the revenue that covers it. The individual coverage principle continues to shape US households.
privacy
In the census ruling of the Federal Constitutional Court of 1983, it is not allowed to "save data for indefinite purposes". For example, a useful benefit must be determined before personal data is collected. According to Section 31 of the Federal Data Protection Act (BDSG), personal data that is stored exclusively for purposes of data protection control, data backup or to ensure the proper operation of a data processing system is subject to a "special purpose limitation" and may only be used for these purposes. The regulation of § 39 BDSG is also to be understood.
For public bodies, it is generally the case that personal data may only be processed for the purpose for which they were collected (e.g. Section 13, Paragraph 1 of the Hessian Data Protection Act (HDSG)). Many other laws contain comparable regulations (e.g. § 78 SGB X ). These regulations serve to ensure the principle of data economy in data protection . The aim is to prevent this data from being used for purposes other than those provided for by law and, in particular, the consolidation of data for purposes that differ.
The purpose limitation arises from the data protection concept of the normative purpose limitation.
literature
- Niko Härting: Earmarking and change of purpose in data protection law. In: NJW 45/2015, pp. 3284-3288.
Individual evidence
- ^ Peter Rösler / Thomas Mackenthun / Rudolf Pohl, Handbook of Credit Business , 2002, p. 156
- ↑ Susanne Hartnick, control problems in donation organizations , 2007, p. 333
- ↑ Susanne Hartnick, control problems in donation organizations , 2007, p. 328 f.
- ↑ BVerwG, judgment of February 23, 2000 , Az. 11 C 3. 99, full text
- ↑ Erwin Jüngel, The Control and Information Potential of the Municipal Budget , 1995, p. 77
