The Bavarian Burial Act (BestG; BayRS 2127-1-G) provides – like the burial laws of most other federal states – that the deceased are generally to be buried in an official cemetery. Exceptions to this are finally regulated in Art. 12; these are very restrictive. Furthermore, Art. 8 stipulates that “cemeteries … are public institutions …” “dedicated to the deceased as a dignified resting place and to the care of their memory” (Art. 8 (1)), and that the sponsors of cemeteries are only legal can be persons under public law (Art. 8 (2)). In the meantime, however, burials in so-called burial forests are also possible in some federal states, which are regularly operated by a private sponsor. According to Art. 1 (1) BestG, the ashes of the deceased must also be buried in a solid urn in the case of a cremation. The possibility of taking the urn home and keeping it there is usually not permitted in Germany and constitutes an administrative offence. The state of Bremen is an exception here, in which it is permitted under certain conditions to store the ashes of the deceased on a private basis Reason to bring out (§ 4 (1a) Law on Cemeteries and Burials in the Free Hanseatic City of Bremen).
The obligation to go to a cemetery, which has existed in Germany since 1934, is justified with various arguments. On the one hand, public health and safety should be guaranteed by the obligation to have a cemetery. Setting standards and regulations for cemeteries aims to ensure a minimum level of hygienic conditions. On the other hand, the peace of the dead is to be protected by the compulsory cemetery. Thus, by having all burials in a cemetery, it is intended to ensure that the rest of the deceased is respected and protected. Finally, the compulsory cemetery has a cultural and historical significance. Cemeteries in Germany have a long tradition and are important cultural and historical sites. The compulsory cemetery thus represents an instrument to continue this tradition.
The obligation to go to a cemetery is a considerable restriction of the individual freedom rights of individuals. From a regulatory economic perspective, the following two questions essentially arise:
- Do all burials – including cremations – have to take place in cemeteries?
- Do cemeteries have to be owned by a legal entity under public law?
Ad 1: Health protection is certainly an important aspect that must be taken into account in such an analysis. The grouping of burials in public cemeteries that meet the requirements regularly meets the requirements for health protection. Of course, a threat to the health of the population is not to be expected in the case of a cremation and the giving of the ashes to relatives in a locked urn. No risk of contamination of water etc. can be expected from this, so that the aspect of health protection should be irrelevant, at least in the case of cremation. Complete approval for burials and thus the complete abolition of the obligation to go to a cemetery would also be possible if only the health protection argument were considered from the point of view of regulatory economics. Here, however, care would have to be taken to ensure that burials outside a cemetery on private property would comply with appropriate hygienic standards, which would also have to include the duration of maintenance of the graves. A complete release of the obligation to have a cemetery would, of course, require regular monitoring of compliance with such standards, which is likely to prove to be comparatively expensive.
The protection of the peace of the dead and the maintenance of tradition are requirements that can certainly be easily realized by making a cemetery compulsory. Of course, it would also be possible in the case of individual private burial sites to take precautions to protect the peace of the dead. Appropriate conditions would have to be made here, which would also have to be monitored. Of course, one could assume that close relatives in particular have a special interest in protecting the peace of the dead.
From the point of view of regulatory economics, the argument of cultivating tradition can hardly be used to justify such massive market regulation. After all, tradition is an expression of voluntary individual actions that are repeated in a certain rhythm. If, however, the preferences of individuals change, then this also leads to an adaptation of the tradition. In other words, if individuals have an interest in maintaining tradition, then no additional regulation is needed. However, if this interest is lost, then such a regulation unjustifiably restricts the freedom of individuals.
From the point of view of regulatory economics, it would make sense to abolish the obligation to go to a cemetery in the case of burials, subject to the specification of corresponding conditions with regard to the design of the burial sites, which in particular take health protection into account. The costs incurred as part of the review of the conditions would then have to be borne by the sponsors of the grave sites. In the case of cremation, the problem of health protection does not apply, so that relatives should be allowed to take the ashes of the deceased with them from the point of view of regulatory economics.
Ad 2:
The operation of cemeteries by legal entities under public law – these are usually the municipalities or the churches – largely takes into account the requirements placed on cemeteries with regard to hygienic requirements, the quiet of the dead and tradition. In fact, these requirements can also be implemented by private providers. Opening up the operation of cemeteries – no matter what form – does not have to mean that the three aspects mentioned are not fulfilled. From the point of view of regulatory economics, potential private cemetery operators would only have to be prescribed hygienic standards and these would also have to be enforced. As shown above, the aspect of tradition represents a rather weak criterion and would also be used by private operators as an action parameter if the relatives would value it. The same applies to the matter of the peace of the dead. In this respect, from a regulatory economic point of view, there would be no reason not to allow private cemetery owners and to force them to comply with hygienic standards through appropriate regulations.
All in all, it seems sensible from an order-economic perspective to abolish the obligation to go to a cemetery for both cremation and burial, whereby the latter in particular should be subject to corresponding conditions. In addition, private cemetery operators should be approved subject to compliance with the relevant conditions.
Such deregulation would, on the one hand, considerably expand the options for action for relatives and for those who wish to regulate their affairs in advance. These additional options for action and the possibility of private competition entering the market would increase competition on this market and lead to the range of services and pricing being more closely based on demand. It remains to be seen whether these would then actually enter the market, since cemeteries are usually in deficit for the municipalities. At the same time, however, liberalization would also affect the after-sales markets, where suppliers such as crematoria, florists, undertakers or stonemasons appear.
Those:
Breuer, M. & Daumann, F. (2010). The funeral market in Germany, In Yearbook for Economics, 60 (3), pp. 227-253.
