In a landmark decision, the Higher Regional Court of Frankfurt am Main (OLG) has declared the monitoring of stationary traffic by “private service providers” to be unlawful. The evidence obtained in this way is subject to an absolute ban on utilization, the OLG ruled in its decision.

The Lord Mayor of the City of Frankfurt am Main (City of Frankfurt), as the local police authority, had imposed a warning fine of €15 on the person concerned for parking without permission in a restricted stopping zone. On appeal by the person concerned, the Frankfurt am Main Local Court confirmed the warning fine in its judgment of 19.07.2018. The findings regarding the parking violation are based on the information provided by witness H., who was questioned during the main hearing. This witness had been “left to the city of Frankfurt by the company W.” and had been appointed by the city as a “city policeman”. The witness performed his duties in uniform.

The person concerned successfully appealed against this conviction before the Higher Regional Court. The OLG explained its decision by stating that the proceedings had to be discontinued because the underlying evidence was subject to an absolute ban on the use of evidence. The use of “private service providers” to monitor stationary traffic is against the law. The right to punish administrative offenses is exclusively assigned to the state – in this case, specifically, to the police. This state monopoly on the use of force, which is rooted in the principle of the rule of law, relates to all traffic monitoring, i.e. both moving and stationary traffic.

In detail:

The OLG had first asked the Ministry of the Interior to communicate the legal structure of the City of Frankfurt’s actions. After consultation with the City of Frankfurt, the Ministry explained that the City of Frankfurt uses temporary workers from a private service provider for the control of stationary traffic on an hourly pay basis. The temporary workers provided by the private company would be “under the use of the Employee Leasing Act and a physical-spatial and organizational integration into the municipal administration” by “the Darmstadt Regional Council in accordance with § 99 para 3 No. 4e HSOG appointed as auxiliary police officers” (statement of the City of Frankfurt from 20.05.2019). According to § 99 para. 2 S.1 HSOG, auxiliary police officers would have the powers of law enforcement officers within the scope of their duties. These comprehensive rights are again limited by individual contracts. The Ministry of the Interior also announced that, in addition to the city of Frankfurt, other municipalities in Hesse had delegated tasks related to the monitoring of stationary traffic to temporary workers, and that these workers had been appointed as auxiliary police officers in each case. These temporary workers wear uniforms in some municipalities, but not all.

The Higher Regional Court now declared this procedure to be unlawful: the obligations assigned by law to the City of Frankfurt as a police authority to monitor stationary traffic and to punish violations are sovereign duties. In the absence of an authorization basis, these tasks could not be carried out by private service providers. The hiring out of private employees under the German Personnel Leasing Act (Arbeitnehmerüberlassungsgesetz, AÜG) for the performance of sovereign tasks is inadmissible. The appointment of private persons as auxiliary police officers of the local police authorities according to § 99 HSOG is unlawful.

There was no enabling statute enacted by Parliament that authorized the City of Frankfurt to transfer the task of monitoring stationary traffic to “third parties.” An employee who is hired out as a temporary employee does not become an “employee” of the City of Frankfurt and therefore cannot become a “city police officer” by means of a sovereign act of appointment. The purpose of the Temporary Employment Act is to curb the abuse of temporary employment in the private sector. A commercial enterprise (and not the state) is allowed to compensate for short-term peaks in activity by bringing in external workers for a short period of time, whereby the decisive factor is that the borrowed employee remains in the lending enterprise.

The Darmstadt Regional Council also had no jurisdiction over the appointment of a private person as a “city policeman” in the present case. In particular, it did not result from Section 99 para. 3 No. 4 HSOG. § On the contrary, Section 99 of the HSOG does not fulfill the requirements for an enabling provision and, as a state police law, cannot fulfill them either. § Section 99 of the HSOG merely regulates the question of a possible state-specific implementation in the execution (“how”) if this is provided for in an enabling statute (“whether”). However, this basis of authorization was lacking for traffic monitoring. With the help of the police law of the federal states, a constitutionally anchored allocation of competences, regulations and sanctions regulated in federal laws could not be circumvented or overridden.

§ 99 para. 3 HSOG is, according to the meaning and purpose of the provision and in accordance with the legislative construction, against the background of its exceptional character, which is to be interpreted narrowly, to Art. 33 Para. 4 GG is structured in such a way that the respective authority can appoint its own employees and employees of the respective subordinate authorities as “auxiliary police officers” for the (police) activities assigned to it. The City of Frankfurt could therefore, pursuant to Sec. 99 para. 3 HSOG to appoint “its own officers” for its own “municipal police”. However, it had not done so.

Instead, she said, she let the “private service provider conduct traffic monitoring in the punishing garb of a police uniform.” The “deceptive appearance of the rule of law” had been built up externally “in order to give the impression of police actions to the citizens and the courts”. In fact, however, these had been carried out by a “private service provider”, which was financed by warning fees, the underlying violations of which it collected itself.