The verdict of the top administrative judges in North Rhine-Westphalia is supposedly inconspicuous. But a decision of May 17, 2022 on the subject of sewage fees has consequences - and creates a need for clarification in the municipalities.
Münster (dpa / lnw) - A ruling by the North Rhine-Westphalian Higher Administrative Court (OVG) on May 17 on excessive sewage fees is currently causing many question marks among the municipalities. "Since the OVG ruling, we have had 30 to 40 inquiries from the municipalities every day. The need for advice is enormous. All the municipalities are restless, a lot of calculations have to be made, that doesn't happen overnight," said Peter Queitsch from the city - and Association of Municipalities NRW.
The 9th Senate of the Higher Administrative Court overturned a decade-old case law of its own house. In a test case against the city of Oer-Erkenschwick, the judges made it clear that the city had charged sewage fees from the northern Ruhr area that were too high - by around 18 percent. The OVG clarified that the calculation of the fees - and thus the costs incurred for the operation of the sewers - worked with an excessively high interest rate and the inflation adjustment was calculated twice.
In the case of Oer-Erkenschwick, the interest rate was 6.25 percent. The OVG considers almost 2.5 percent to be appropriate. Among other things, because the calculation should not be based on an average over the past 50 years for interest rates, but only retrospectively over 10 years. Cities and municipalities usually depreciate their channels over 50 years. However, according to the judgement, this period should not play a role in the fictitious calculation of interest.
Although the Higher Administrative Court has decided in a test case, not all municipalities make the same judgment. Rates and calculations may vary. "An important note: the fee notices are based on forecasts by the municipalities. According to the ruling, the municipalities must retrospectively take the actual costs into account when recalculating. In individual cases, this can lead to increased notices, despite the successful lawsuit," explained Queitsch.
Just one week after the oral hearing, the Higher Administrative Court had already entered the decision in writing into the state's judgment database, so that the municipalities can quickly get an idea of the pending fee calculations.
"After the OVG NRW's ruling on the calculation of sewage fees, many municipalities have to check and adjust their fee calculations," said Christof Sommer, general manager of the Association of Towns and Municipalities in NRW of the German Press Agency. The judgment does not make the law on fees any easier.
The changes also entail a mountain of work for the chamberlains and commercial enterprises. They would have to check whether they were affected by the judgment and how the calculation could be adapted to the complex and new requirements of the court. "It will still take many weeks before the changes are implemented in municipal practice," said Sommer.
The city of Bielefeld quickly announced that the judgment would also have consequences for the city in East Westphalia. "Due to the changed case law, as a precautionary measure, all corresponding decisions by the city of Bielefeld regarding the determination of these fees will be issued with the reservation of review. The determinations are made "with revocation", so to speak, and it is ensured that new decisions can be made later if necessary. Corrections will be made," the city said.
The Association of Taxpayers in North Rhine-Westphalia, which had supported the lawsuit in the Oer-Erkenschwick case, explained in detail on its website what the consequences of the judgment are for homeowners and tenants - depending on whether they had lodged an objection or not. In the case of fee notifications that are already final and against which no objection has been lodged, the taxpayers' association advises you to submit an application for withdrawal. However, administrative lawyers do not see any realistic chances of success with these applications.