I. Introduction
The central provision of the German Administrative Offenses Act (OWiG) with regard to the assessment of fines is Section 17 III OWiG. Pursuant to Section 17 III 1 OWiG, the significance of the matter and the accusation against the offender are used as the basis for the assessment. According to Section 17 III 2 half-sentence 1 OWiG, the economic circumstances of the offender must also be taken into account. However, according to § 17 III 2 half-sentence 2 OWiG, these are generally not to be taken into account as long as the administrative offense is a minor one. Accordingly, in the case of minor administrative offenses, the consideration of economic circumstances can generally be dispensed with when assessing the fine, in which case the judgment does not have to contain any findings in this regard.
The consequence of this regulation is that even in the case of Section 20 OWiG, the economic circumstances of the offender are not taken into account, since the focus is not on the total amount, but on the respective individual amount, which is set separately (so-called cumulation principle). This raises the question of whether this approach meets the requirements of proportionality or whether, on the contrary, an overall assessment of the cumulative fines is required. Furthermore, it must be clarified whether the judgment must include findings on the economic circumstances.
II. Case law
The courts only take the offender's financial circumstances into account when setting the fine if the respective individual amount is not an insignificant individual amount that is not to be taken into account. The economic circumstances include, in particular, the income, assets, maintenance obligations of the offender, as well as debts and personal circumstances that have a direct impact on the economic circumstances. The term "minor misdemeanor" is understood to mean, based on § 56 I 1 OWiG, fines up to the amount of 35 euros. Furthermore, it is assumed by the non-uniform case law that consideration of the economic circumstances and a presentation in the judgment can be omitted if the fine does not exceed 250 euros. The only exception to this is if there is evidence that the economic circumstances are significantly above or below average. This limit is drawn by case law in accordance with § 79 I 1 No. 1 OWiG. The Higher Regional Court of Hamm formulates: [...] The fines imposed are not to be added together. In the case of the violation of the FPersG and the four speeding violations established by the judge, these are not only materially but also procedurally independent offenses [...]." The Higher Regional Court of Cologne, for example, explains: "[...] According to § 79 I 1 No. 1 OWiG, a legal complaint is admissible against the judgment if a fine of more than 200 DM (100 euros) has been imposed. This refers to a fine imposed for an offense in the procedural sense (§ 264 StPO). If the judgment imposes fines of no more than €250 for several procedurally independent offenses pursuant to Section 264 of the Code of Criminal Procedure, no appeal is opened. [...] However, several individual fines of less than €250 are only added together if, in procedural terms, there is one offense but, in substantive terms, there are several independent actions within the meaning of § 20 OWiG [...]."
Accordingly, the courts ultimately only consider each case individually because the limit for an appeal against a fine under Section 79 I No. 1 OWiG is 250 euros. The only consensus is that if the fine is over 1000 euros, the "insignificance" within the meaning of Section 17 III 2 last clause OWiG must be denied. Overall, the case law therefore focuses on the individual minor administrative offense, even if, when several minor administrative offenses occur, an overall amount of the fine is reached that is far removed from that of a minor administrative offense. When determining the amount of the fine, the economic circumstances of the person concerned should be taken into account to a considerable extent, but not always as the main factor. The question of whether the current practice sufficiently takes into account all overriding legal principles will be examined below.
III. Proposed solution
In our opinion, the assessment of the presented case law, in which the consideration of the economic circumstances is based only on the respective individual amount of the minor administrative offense, without taking an overall view, violates the principle of proportionality.ßigkeit. Rather, an examination of proportionality must also be carried out when several minor offenses come together. The deciding factor is whether the limit of insignificance has been exceeded and the total fine is disproportionately (high). Whether this limit was exceeded by one administrative offense or by several minor administrative offenses cannot be of relevance. Consequently, it is also necessary for the judgment in such cases to contain explanations of the economic circumstances, otherwise it would be incomplete. This result can be justified below by interpreting the last clause of § 17 III 2 OWiG.
1. wording
Starting with the interpretation of the wording, it can be seen that the economic circumstances are only "taken into account" for the assessment, whereas the significance of the administrative offense and the accusation against the perpetrator are always relevant for the assessment of the fine. Thus, there is initially no obligation to examine the economic circumstances. Pursuant to § 17 III 2 OWiG, the economic circumstances are "generally" not taken into account in the case of minor offenses. Thus, it is clear that only "as a rule" no consideration of the economic circumstances is carried out in the case of minor offenses, but this is not mandatory. However, this must also mean that, despite the fact that the low-income threshold is not reached, the economic circumstances can be taken into account if they are exceptionally poor. According to the wording of the law, cases are also conceivable in which, despite minor administrative offenses, the economic circumstances can be taken into account. This may therefore apply in particular to the case that, in the case of several minor offenses, which have been committed by the majority, the accumulation of the minor offenses in itself leads to a relatively high fine. Conversely, if a review of economic circumstances is not required for minor offenses, then a review must be carried out when there is no longer a minor offense, which could only be done on the basis of an overall assessment. According to a grammatical interpretation of § 17 III 2 last half-sentence OWiG, it must therefore be stated that the wording does not preclude an interpretation to the effect that not only the individual amount but also the total amount (consisting of the actually minor administrative offenses) should be taken into account.
2. Historical interpretation
The historical interpretation must be based on the will of the legislator. To do this, we must refer to Bundestag document 2652 of the 10th legislative period dated December 17, 1984. The amendment of § 17 III 2 last half-sentence OWiG took place in parallel to the increase of the warning fine to DM 75 (currently 35 euros) in § 56 I 1 OWiG, since the minor administrative offense is present as a requirement for the offense in both provisions. In this area of minor offenses, the economic circumstances are thus not taken into account. The legislature justified this by stating that [...] the limit of this area of monetary loss is specified by the amount of the warning fine. [...] Thus, it is (still) the legislator's intention that the consideration of economic circumstances should only be avoided up to the limit of the warning fine of 35 euros. From the wording "monetary losses" it can be concluded that the focus should be on the tangible financial losses suffered by the offender. However, if these financial losses exceed the amount of a warning fine, there is no apparent reason, based on the official reasoning, to disregard the economic circumstances. On the contrary, especially if the amount of 35 euros is exceeded, regardless of the reason, it seems only fair to take the economic circumstances into account. This must also apply when it comes to the concurrence of several minor offenses, since in this case, too, the limit of "monetary losses for the offender", which can be calculated without taking economic circumstances into account, is exceeded. For the offender, it is irrelevant and makes no difference whether his financial losses result from one major or several minor offenses. Any other interpretation would therefore violate the clear intention of the legislator.
In addition, the legislator himself mentions the principle of proportionality, which will be discussed in the context of the discussion regarding the teleological interpretation. Since the legislature only wanted to create a failure to take economic circumstances into account for minor offenses up to a limit of 35 euros, if several of these minor offenses coincide and thus result in a high fine, the economic circumstances must be taken into account.In summary, it can be said that a historical interpretation indicates that the legislature intended an overall consideration, since the focus is explicitly on the "financial loss" to the offender.
3. Systematic interpretation
Furthermore, an interpretation must be carried out on the basis of the legal system. In § 56 I 1 OWiG, the characteristic of a minor offense is also used. Reference may be made to the remarks made above. A systematic interpretation can contribute to the clarification of the problem with regard to the consideration of the economic circumstances in the case ofconsideration of the economic circumstances in the case of minor offenses committed by the majority of offenders, to the effect that the primary basis for the assessment of the fine is the significance of the offense and the reproach that attaches to the offender. However, even if several minor offenses are cumulated, the significance of the offense cannot be considered significantly higher because it still remains minor. The same applies to the accusation against the perpetrator. This must also be considered minor, even if there is an accumulation of offenses. Since these two factors are systematically decisive, it seems incomprehensible not to apply them in the case of the accumulation of several minor offenses. Systematic interpretation therefore also shows that an overall consideration with regard to insignificance is appropriate.
4. Teleological interpretation
The teleological interpretation examines the meaning and purpose of the provision and discusses the conflict of interests that the norm is intended to regulate. In the case of a relatively high fine, the economic capacity of the offender must be taken into account, since this determines how severely the fine affects him. However, if the offender's economic capacity is taken into account, then according to the sense and purpose of the regulation it makes no difference whether this is affected by a large fine or several small ones. It is immaterial whether the low-income limit is exceeded due to one violation or due to the concurrence of multiple violations. This conflict of interest between disregarding minor offenses and taking economic circumstances into account for non-minor offenses is resolved by the principle of proportionality, which can be applied here. This principle, which is derived from the principle of the rule of law under Article 20 III of the German Constitution, states that all state action must be appropriate, necessary and reasonable. The principle of the rule of law must be observed, as it is one of the five structural principles of the Basic Law and, according to Article 2 of the Treaty on European Union (TEU), is one of the values on which the European Union is founded. Accordingly, only those sovereign measures are permissible that do not unduly interfere with the legal position of the citizen to an extent that goes beyond what is appropriate and necessary to achieve a specific goal, i.e., disproportionately in the narrower sense.
A measure is suitable if it can at least further the desired outcome. The reason for not taking economic circumstances into account in the case of minor offenses is that there is no risk in this case of exceeding the economic capacity of the offender. The measure is necessary if no milder, equally suitable means is available. A milder, equally suitable means of taking economic circumstances into account is not apparent. Therefore, with regard to the consideration of the economic circumstances, the insignificance of the administrative offense is to be taken into account. Adequacy (proportionality in the narrower sense) is present when the disadvantage for the person concerned and the desired outcome are in reasonable proportion to each other. This constitutionally enshrined principle thus requires a graduated approach depending on the violation of the law and the severity of the intervention. In the case of multiple minor offenses, it is necessary to confirm that several violations have occurred. These remain minor offenses in themselves and the accumulation alone does not make them a serious violation of the law. However, in this case in particular, if the range of insignificance is clearly exceeded only by the accumulation of the fines, then an overall assessment must be carried out in order to take into account the economic performance of the offender. In particular, because the violation of the law itself is still minor, so that such a severe punishment of the violation without taking into account the economic circumstances would violate the principle outlined. In all cases in which the offender, as a result of paying the fine, has restrictions placed on his way of life to the extent that he can no longer make a living, the economic circumstances must be taken into account. In doing so, it is sufficient to limit the discussion to those findings in the judgment that, based on general experience, normally explain the economic ability of the person concerned to pay a certain fine that is appropriate to the significance of the matter. This will be illustrated using a specific example: In a fine notice issued by the SGD Nord Koblenz on May 5, 2009 – 21-7/42-0/2008/3299, a fine of €3,145.62 was imposed. This was composed of a total of 25 violations, including exceeding daily driving times and late interruptions. In such a case, the offender cannot be required to pay this fine without a closer examination of his economic circumstances, since this payment could be absolutely impossible for the offender. Therefore, the offender's economic capacity must be taken into account, as it determines how severely the offender is affected by the fine. Adherence to rigid guidelines must not lead to the imposition of a disproportionate sanction that the person concerned can no longer afford. Without the necessity of an overall assessment and the presentation and substantiation of this in the judgment, the convicted person would be burdened with an unbearable burden.
When determining the financial circumstances of the person concerned, the finding that he has a regular income is meaningless. Accordingly, the requirements for the findings in the judgment with regard to the financial circumstances should not be underestimated. It seems advisable for the defense to provide information on the client's financial circumstances when the low-income limit is exceeded (individual fine or total amount). A comprehensive view must therefore be taken if several administrative offenses that are minor in themselves have been committed, but together they constitute a relatively high fine. This view is also taken by the Higher Regional Court of Karlsruhe: [...] The Senate has already ruled on several occasions that the use of such administrative instructions must not lead to the economic circumstances of the person concerned being completely disregarded. This is not only relevant in the case of relatively high fines, but also when a large number of individual offenses are to be punished at the same time. In such a case, too, adhering to the standard fine can lead to the imposition of a disproportionate sanction, since it cannot be met by the person concerned [...]". The fact that a "comprehensive assessment" must generally take place is also made clear by the task of the case law of the Federal Court of Justice on "continued offense" with all the associated consequences for the legal consequence of the "offenses" to be pronounced – then reduced. Göhler also states under § 20 OWiG: "Any hardships can and must be avoided by a sensible application of the opportunity principle and a coordinated arrangement of multiple legal consequences."
IV. Summary and conclusion
The interpretation of § 17 III 2 last part OWiG has shown that the economic circumstances of the perpetrator are relevant as a basis for the assessment. According to the principle of proportionality derived from the principle of the rule of law (Article 20 III of the Basic Law), if several minor administrative offenses occur at the same time, an overall assessment must be made in each individual case to determine whether the total amount, which is composed of the cumulative minor offenses, is in itself tolerable and (still) proportionate. This is the only way to avoid disproportionate results, since otherwise, even if several minor offenses occur, which together add up to a high total amount, the economic circumstances would not have to be taken into account. A focus on the respective individual amount can be contrary to the principle of proportionality. Thus, after an overall consideration in the individual case, if the low income limit is exceeded, the judgment must also contain statements on the economic circumstances, as it would otherwise be incomplete.
We therefore suggest that an overall consideration in individual cases must be made when the low-income limit is exceeded with regard to the assessment of the fine pursuant to Section 17 III 2 last half-sentence OWiG. At the latest with a cumulative total fine of 2000 euros, such an overall consideration must take place and this must also be presented in the judgment. Otherwise, there is a clear violation of the principle of proportionality, which could not be reviewed by the court of appeal on the basis of the judgment and the minutes of the hearing.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.