VGH Kassel NJW 1977, 452 V N 3/75
28 September 1976
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Raymond Youngs
Professor Basil Markesinis


The applicant, whose son attends one of the respondent's kindergartens, sought, by way of norm control proceedings, the examination of the fees regime in the "Kindergarten Order" decided on by the respondent's assembly of city councillors. Under this, a "parents’ sum" was provided for, graded in accordance with the gross income of both parents. The senate shared the respondent's reservations and declared this regime to be invalid.


The application should be allowed.

1. It is admissible.

a) According to § 47 of the VwGO (Administrative Court Order) in combination with § 11(1) of the HessAG-VwGO of the 6. 2. 1962 (reference omitted) the VGH Kassel must decide, within the scope of its jurisdiction, on an application about the validity of a state law regulation or another provision ranking beneath a state statute. This prerequisite is fulfilled because the norm of the Kindergarten Order which is under challenge represents such a provision. The Kindergarten Order is, in spite of its description as an "order", which as such is insignificant, by its nature a bylaw issued by the respondent for its kindergartens which are subject to its regulatory power, as institutions of public law which do not have legal capacity. It is, on the other hand, not a private law use regime, which would not be subject to administrative court proceedings. Admittedly the use of a kindergarten can occur in a private law as well as in a public law manner (references omitted) because the Hessian Kindergarten Act of 4. 9. 1974 (reference omitted) does not limit the possibility of use to the public law form. But it is necessary to distinguish from this the permission for a kindergarten as a public law institution, in the sense of § 19 (1) sentence 1 of the HessGO, based on the Kindergarten Order. Such a kindergarten is included in the category of non-economic undertakings, because it does not take part in general business activity. The permitting of a public institution belongs to public law even when its use takes place in private law. No conclusion can be drawn as to the legal character of the permission from the nature of the use. Even statutes and regulations which are subject to norm control proceedings before the constitutional and administrative courts regulate legal relationships in sovereign form which can also be those of private law. In permitting a public institution, the respondent had no freedom of choice between public and private law. Regardless of the legal nature of the use relationship, the permission in any case represents a sovereign act of public law (references omitted). In this situation the respondent could not exclude the public law applying to it by regulating this area of life by private law at its own choice, because it follows from § 19 (1) HessGO that permission for a public institution takes effect under public law because a municipality does not have the option of keeping users away from a public institution at it pleases, as would otherwise be possible - apart from an obligation to contract, as to which, however, municipality law says nothing. Under § 20 (1) of the HessGO, the inhabitants of the municipality are entitled within the framework of "existing provisions" to use the public institutions of the municipality. Such provisions regulating the permission are of a public law nature. Accordingly it is not necessary to answer the question of whether escape into private law in order to avoid public law relationships represents an impermissible use of forms. This is because the respondent in the para no 7, which is under challenge, of its Kindergarten Order has (contrary to the respondents incorrect view) not enacted a private law payment regime, but a norm of public law. The payment regime is in such a close objective relationship with the public law permission - which is contained in the provisions about admission and notification of departure - that it shares its public law character. This is because it contains by its very nature a significant prerequisite for the claiming of a kindergarten place. In addition to this, the respondent has by its Kindergarten Order formulated the complete use relationship in public law. Its description alone argues in favour of a sovereign regime and not a general condition of contract (AGB). Even the laying down of opening times and the statement of the expectation that the children should attend the kindergarten regularly (no 6), the subjecting of the kindergarten personnel to the supervision of the mayor and the specialist supervision of the manageress of the kindergarten (no 4), the provision about the duty of supervision of the persons entitled to education (no 8), as well as the description of the money for the use of the kindergarten as the "parents' sum" (no 7) argue in favour of the public law use form. In view of this content for the regime which has been made, there are no grounds for saying that a private law regime through the AGB was intended instead of the public law one (references omitted). The rules made definitely do not merely have effect within the organisation, but also external effects in the relationship between the respondent and the users of the kindergarten. This applies precisely to the setting of fees because it is by them that the duty of performance on the part of the kindergarten user is prescribed in favour of the respondent ...


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