OLG Celle NJW 1977, 1295 OLG Celle, judgment of 15. 4. 1977 - 8 U 105/76
15 April 1977
Professor B. S. Markesinis
Raymond Youngs


The claimants' children are attending day nurseries which are run by the defendant. The parties are in dispute about whether the defendant is entitled to demand an income-related payment for attendance at the day nurseries. The Landgericht has established that, according to the decision of the 23rd June 1975, the defendant is not entitled to demand parental contributions from the claimants in accordance with the parental contribution table for municipal day nurseries. It rejected the claimants' application to establish that the defendant is not entitled to demand from them evidence of their families' income, if need be by employer's certificate. The defendant's appeal directed against this was unsuccessful. On the claimants’ appeal, the claim was allowed to its full extent.



There is a right of action in the ordinary courts. According to § 13 of the GVG (Constitution of the Courts Act) all civil law disputes for which neither the jurisdiction of the administrative authorities nor the administrative courts is established (and where special courts are not appointed or permitted on the basis of provisions of federal law) belong before the ordinary courts. The jurisdiction of the ordinary courts finds its limits where the area of jurisdiction of the administrative courts begins (reference omitted).

It is not simply the public law nature of the tasks, the public interest pursued by the activity or the consideration of community interests which is determinative for differentiating between civil law and public law areas of action. A municipality can in principle also choose to fulfil the public law tasks entrusted to it by private law means on the same legal plane as every citizen in private law matters, in so far as the particular nature of the task is not inconsistent with this. Where the state is carrying on an activity which can by its nature also be undertaken on a civil law basis and in a relationship of equality of status, it is up to the state how it organises this activity (references omitted). In this connection, it is necessary to distinguish between the act of creation of the enterprise on the one hand, and its organisation on the other. The creation of an enterprise of welfare administration, in particular for social services, can be entirely based on a sovereign act, like for example the erection of a hospital (reference omitted), without the organisation needing to be of a sovereign nature in relation to the outside world. Even the formulation of the relationship of the kindergarten staff to the defendant is, contrary to the view of the VGH Kassel (reference omitted), not determinative of the formulation of the relationship to the users (reference omitted). The decisive factor here is how the day nurseries run by the defendant are arranged in the relationship to the users of this institution, in what way the business is organised in relation to the outside world and whether an intention can be detected on the part of the holder of sovereign authority to carry on the enterprise in favour of the users in a relationship of equality of status (and therefore in the private law sphere) or to run it in the sovereign exercise of public power (references omitted).

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