The traffic light federal government was informed about the illegality of the special funds. The Bundestag's Scientific Service drew attention to the general constitutional problems of special funds in 2021 - and renewed its concerns in July 2023. The institution is considered independent and is intended to enable the legislature to avoid wrong decisions on complex issues.
The Scientific Service published the study on July 4, 2023 under the number WD-8 047/23
For the purpose of the Climate and Transformation Fund
It says on page 4:
“Special funds are assets that exist in addition to the actual state budget and serve “special” financing purposes.17 The use of the funds with which a special fund is endowed must be regulated by law. There is a close connection between the use of funds and the determination of the purpose of the special fund. The funds may only be used within the scope of the intended purpose and the other legal requirements in compliance with the general budgetary provisions.
And:
“A change in the purpose of the KTFG or a narrowing of the financial scope of the KTF through a title in the budget law that deviates from the purpose of the applicable KTFG could also have to be assessed critically in view of the original purpose of this special fund”
That's not all: According to the paper, the Federal Constitutional Court already criticized the practice of special funds in 2021.
The WD also has this on page 4:
The Federal Constitutional Court (BVerfG) stated in the interim legal protection proceedings for the Second Supplementary Budget Act 2021: "The - even temporary - narrowing of the financial scope of the special fund would result in cuts and deletions of other programs within the KTF as a result of the restructuring, which could result in missing CO2 reduction targets. Because of the obligations under the Climate Protection Act, alternative programs would have to be implemented, which could result in new budgetary burdens. If the reduction targets were missed, corresponding emissions certificates would have to be purchased from other EU member states, which would also result in budgetary burdens."
The federal government should therefore have known that it was acting unconstitutionally BEFORE implementing its special fund policy.