Bonn, 15 November 2024. On 13 November 2024, the Federal Administrative Court (BVerwG) af‑firmed the legality of the wastewater levy notices issued by the Free State of Saxony in two appeal proceedings (Ref. 9 C 3.24 and 9 C 4.23). Two Saxon special‑purpose associations responsible for public wastewater disposal in their respective catchment areas had taken legal action contesting their wastewater levy notices from the Free State of Saxony. After the Superior Administrative Court (OVG) had annulled the contested notices in full or in part in an appeal by the plaintiffs, the Federal Adminis‑trative Court amended the appeal judgements and dismissed the appeals completely in each case. Law‑yer Dr Sophia Pommer (Redeker Sellner Dahs) was acting as counsel for the Free State of Saxony in the appeal proceedings.
The background to the proceedings is the question of whether the wastewater levy assessed for the discharge of wastewater is to be based on its harmfulness or whether it should be deemed to be a “small discharge” in the meaning of Section 8 of the German Wastewater Levy Act (AbwAG). The plaintiffs were of the view that their discharges were to be regarded as small discharges, which would result in a flat‑rate levy assessment and in certain cases could allow complete exemption from the levy.
In the cases in question, a special‑purpose association treats wastewater from 47 residents of a town in a central (small) wastewater treatment plant, thereafter discharging it into a soakaway. In the other case, wastewater from property owners treated in small (private) wastewater treatment systems is fed into the public (district) sewage system and also discharged into waterways by the special‑purpose association.
The Federal Administrative Court has now upheld the standpoint of the Free State of Saxony, accord‑ing to which the exemption provision laid down in Section 8 of the German Wastewater Levy Act (AbwAG) only applies if the discharges constitute wastewater for which a public corporation is liable to pay the levy “in place of the dischargers”. According to the High Court, if as in the cases at issue here, the plaintiffs are not liable to pay the levy on behalf of third‑party dischargers, but are themselves dischargers, the small discharger rule does not apply. In the opinion of the Federal Administrative Court, this distinction is proper and appropriate because the authorities in charge can design and organ‑ise wastewater disposal themselves and if necessary optimise it in this context, whereas a small private discharger cannot force the authorities to connect it to the public sewer system.
Dr Sophia Pommer is a lawyer at Redeker Sellner Dahs and specialised in public commercial law, mu‑nicipal tax law and public building and planning law.
