78 BVerfGE 104 (1988)

{Translator’s Note: A large part of this case consists of divergent interpretations of the applicable law by the referring High Court of Bremen and the Federal government. The Federal Constitutional Court outlines both arguments and in most parts agrees with the interpretation of the Federal government. This discussion is not too relevant, though, because under any of the proposed interpretations a recipient of social aid from the state may be required to return part of that aid to the state in order to share the cost of legal council.

Terms used by the court which do not have an adequate translation into English:

1. Existenzminimum. This term usually refers to a numerical value. If income or wealth of someone falls below this certain value, it is said that the basis on which a human existence flourishes is in danger. Where one finds such boundaries depends on the particular circumstances, for instance, the Existenzminimum of someone living in a European welfare state would be higher than the one of a person living in an underdeveloped country. I translated the term with ‘income level which is necessary to exist.’

2. Regelsatz. A monetary value defined by the Federal Social Aid Law (FSAL). The Regelsatz is the amount of money one is entitled to get from the government to secure one’s basic needs excluding housing and heat.

3. Regelbedarf. The numerical value which results if one adds housing and heating costs to the Regelsatz.

4. Tabellengrenzwert. The numerical value defined in Table 1, as described below, above which one has to share costs of legal council. I translated the term with ‘the net income below which no installments have to be paid to share the costs of legal council from Table 1.’}

Facts:

The German parliament passed into law in 1980 an Act regulating state assistance to help citizens pay for legal assistance. The Act was explicitly aimed at facilitating the access to the courts for citizens with lower incomes. It was codified in the German Civil Lawsuit Regulation (Zivilprozessordnung, hereafter CLR) Sections 114 and 115. Section 114 of the CLR reads that citizens who cannot, can only partly, or can only in installments finance a non-frivolous lawsuit and have sufficient chances of winning, are entitled to state aid to finance legal council. For details as to who is entitled to receive aid, Table 1 is attached to Section 114 of the CLR. Table 1 spells out in detail installment payments citizens who receive aid to finance legal counsel have to pay for a period of up to four years. No installments at all need to be paid in cases where the citizen has a net monthly income of up to DM 850. Section 115 of the CLR lists some specific rules. Noteworthy for this case is Section 115.1. third sentence of the CLR which allows the courts to reduce the amount of net income to be used in Table 1 under certain circumstance to allow some to pay lower installments of no installments at all.

The legislator in 1980 arrived at the amount of DM 850 by the following calculation:

1. Twice the Regelsatz as defined in the Federal Social Aid Law. On January 1, 1979 this amount was set at DM 297.
2. A lump-sum for housing of DM 156.
3. A sum of DM 100 for additional improvement of the situation of the poor.

This case was referred to the Federal Constitutional Court by the State Court of Bremen. That court had before it a request of a single mother with two children to receive state assistance to pay for her legal counsel. The mother lived on social aid. She received DM 1005.74 by the following calculation following the Federal Social Aid Law:

1. The Regelsatz as defined in the Federal Social Aid Law. On September 16, 1986 this amount was set at DM 392.
2. Individual additional support of DM 131.24 as provided for in the Federal Social Aid Law.
3. Support for housing of DM 482.50 as provided for in the Federal Social Aid Law.

Sections 114 and 115 in conjunction with Table 1 of the CLR required the mother to share the cost for her legal counsel by monthly installments of at least DM 35. The State Court of Bremen interrupted the request of the mother for aid and referred the following question to the Federal Constitutional Court: Are Sections 114 and 115 in conjunction with Table 1 of the CLR in violation of Articles 3.1. and 20.1. of the Basic Law?

The State Court of Bremen contended that the principle of a social state of Article 20.1. of the Basic Law (Sozialstaatsgebot) commands the state to protect the elementary needs of its citizens as well as to assure that citizens with low incomes receive aid to finance legal counsel. The court continued that only elementary needs are being protected by the Federal Social Aid Law, the law which allocated to the mother DM 1005.74. Furthermore, the duty to assure that citizens with low income receive aid to finance legal counsel has to be assured in addition by means of Sections 114 and 115 in conjunction with Table 1 of the CLR. The court concluded the current version of the CLR is in violation with Article 20.1. of the Basic Law because it requires citizens to draw funds from their state aid for their elementary needs as provided by the Federal Social Aid Law to repay part of their aid to finance legal council.

The State Court of Bremen also argued that Sections 114 and 115 in conjunction with Table 1 of the CLR are in violation with Article 3.1. of the Basic Law. The court contended that Federal Social Aid Law contains many regulations which allow citizens with low income to claim support for particular situations of life. Examples of such aid are extra support for pregnant women and for old, blind, or handicapped people. The fact that the aid to finance council is treated differently than the aid for other needs is in violation of Article 3.1. of the Basic Law.

The Federal government counterargued that the different treatment of aid granted under the Federal Social Aid Law and aid granted pursuant Sections 114 and 115 in conjunction with Table 1 of the CLR is not unconstitutional. The Federal government stated that the difference in the treatment is within the discretion of the legislator.

Issue:

Is Table 1 of section 114 of the CLR in accord with the Basic Law?

Holding by the First Senate:

Yes, it is.

Discussion:
Table 1 of Section 114 of the CLR is in accordance with the Basic Law.

1. The principle of social justice (Sozialstaatsprinzip) and the equality before the law guaranteed by Article 3.1. of the Basic Law also apply [to people’s abilities] to claim and win individual legal positions with the aid of state courts. Since the state regularly makes access to these courts contingent on cost advances and often on having legal representation, the realization of equality before the law can be factually at stake in cases [where citizens do not hold economic wealth]. Therefore the legislator has to ensure that also the party without wealth is put into a position in which he can pursue his interests in a lawsuit in a manner that is in accord with the principle of equality. The alignment of the situation of people with wealth and people without wealth in the legal realm cannot be complete. Rather, the extent [of the alignment] is within the discretion of the legislator. The constitution solely demands that even for the poor party the pursuit of a lawsuit is not rendered impossible. Such a result would have to be feared if, without aid to finance legal council from the state, [the income of a party would drop below the level which is necessary to exist].

2. The securing [that no one’s income drops below the level which is necessary to exist] is duty of the social aid law. The Regelbedarf [as defined] in the social aid law, which is set with respect to actual consumption and gets periodically adjusted [to economic changes], can therefore be used as a guideline for [the question whether people have to pay installments to share the cost of aid to pay for legal council]. The Regelbedarf is supposed to ensure a standard of living that allows the individual to live a life worthy of a human being. The costs of pursuing a lawsuit are not included in this basic need. That this must be correct] can be shown by the fact that a needy person entitled to social aid is entitled to funds in addition to the Regelbedarf in particular situations of life. Whereas the [Regelbedarf] serves to secure the income level which is necessary to exist, the aid for extraordinary situations of life covers specific situations of need. [The pursuit of one’s legal right in the courts is such a specific situation of need.] It follows that [a person cannot be demanded to pay installments] to share the costs, if the entitled party’s income is [not larger] than the Regelsatz as defined in social aid law. [The Regelsatz] must be at free disposal without limitation [to finance the needy person’s life].

3. The Regelsatz for the aid to sustain the life of a single was set at DM 297 on national average in [1980, the time the Act regulating aid to citizens for legal council was debated]. The legislator used this value to set the amount of [net income below which no installments have to be paid to share costs of legal council from Table 1]. In September 1985 the Regelsatz had increased to DM 385 and in September 1987 it had increased to DM 403. The monthly aid for shelter and heat are not covered by the Regelsatz, but rather the amount of the actual cost [for shelter and heat] are being granted in addition. When the legislator [in 1980 set the net income below which no installments have to be paid to share the cost of legal council in Table 1] at DM 850, he presumed a lump sum of DM 156 for housing. In the year of 1983 [the responsible agencies] set the average values for rent at DM 234 and for heat at DM 59. Taking into consideration the increases in prices since then, one may set the average need for a single social aid recipient for housing and heat at about DM 300. Together with the current average Regelsatz of DM 403, an average Regelbedarf of roughly DM 700 for a single person results.

4. [The net income below which no installments have to be paid to share costs of legal council from Table 1] is therefore still clearly higher than the amount which is necessary to secure the income level which is necessary to exist. The same holds for a party with dependents [and the applicable values from Table 1 and the applicable values for the income level which is necessary to exist].Even if in individual cases the social aid received by a party is larger than the [net income below which no installments have to be paid to share costs of legal council from Table 1], it is not possible to derive therefrom constitutional [objections] against Table 1. Even in those cases, the use of Table 1 does not necessarily lead to unconstitutional results, because Section 115.1. third sentence of the CLR leaves it open to [the lower courts] to make deductions from the amount of income which is used in Table 1. The possibility of making deductions from the amount of income which is used in Table 1, pursuant to Section 115.1. third sentence of the CLR, is being used by [a large majority of courts], especially if the [rent of the party that is entitled to receive social aid] amounts to more than 18 percent of the disposable net income.

5. However one cannot fail to recognize that the Regelbedarf [as defined in the social aid law] by now came very close to [net income below which no installments have to be paid to share costs of legal council from Table 1]. The legislator will therefore have to pay attention that with further increases of the Regelsatz in the social aid law, the [required installments to share the costs of legal council] do not endanger the income level which is necessary to exist of the party without wealth.

II.

[One can also not conclude from the fact that the net income below which no installments have to be paid to share costs of legal council have not risen since 1980] whereas the income boundaries [for free disposal] with respect to aid granted in particular situations of life under the Federal Social Aid Law have been increased in the meantime, that [Table 1] is unconstitutional. The dissimilar treatment is not based on arbitrariness.

1. [The Federal Constitutional Court next outlined some regulations of the Federal Social Aid Law. According to the FSAL there exist twelve situations for which citizens can claim additional aid, for instance, aid for pregnant women, aid for the blind, sick or elderly. The court than outlined how special regulations of the FSAL with respect to these twelve situations result frequently in higher income boundaries for free disposal in these twelve cases. Then the Federal Constitutional Court outlined the possible and frequent results of these regulations. It may for example happen that a single mother receives DM 1000 in social aid including the aid for special situations. In many situations these DM 1000 will be at her free disposal because the FSAL earmarked these funds to be at the recipients free disposal. At the same time another person who receives DM 1000 in social aid and no aid for special situations or someone who earns that amount on the labor market may not have the entire amount at her free disposal. In result the first woman would not have to pay installments to share costs of legal council from Table 1, whereas the second woman would have to pay. After outlining this the court proceeded to explain why this practice is not arbitrary.]

2. The legal regulations with respect to aid to finance legal council on the one hand, and the regulations with respect to aid in particular situations of life on the other hand, do not differentiate between certain people or groups of people. Rather they regulate different factual areas (Sachbereiche). The question of compatibility with the principle of equality is therefore not a question of personal, but rather a question of factual equality before the law. The regulation may not treat essentially similar [things] arbitrarily dissimilar and [the regulation may not treat] essentially dissimilar [things] arbitrarily similar. Which elements of a factual situation (Sachverhaltselemente) are so essential as to LEFT a differentiated treatment has to be decided in the first place by the legislator. A far-reaching discretion in designing [regulations has always been granted to the legislator]. This discretion [of the legislator] in designing [regulations] extends further in the realm of providing administration [than it reaches ] in the legal regulations of encroachments by the state. In particular, the Federal Constitutional Court has to exercise the largest restraint in imposing upon the legislator, with the justification of the principle of equality, in the realm of providing administration, additional duties [to deliver welfare]. A violation of the [duty to refrain from arbitrary actions] can only be found if [neither] a reasonable justification which flows from the nature of the subject matter [nor] any other somehow sensible justification can be found.

3.a) A factual reason for the dissimilar setting of the income boundaries [for free disposal] flows already from the different subject matters to be regulated. The aid granted for the particular situations of life ([as is true for the basic aid]) has the purpose to enable the recipient to lead a life worthy of a human being. [In cases where aid for particular situations of life is granted, the legislator explicitly decided] to grant people with low incomes protection which goes beyond the basic amount of aid (Regelsatz). [The underlying rationale of the legislator was that the people who find themselves in these particular life situations] generally have an increased need to meet the costs of their lives. [Such an argument] does not hold for the aid to finance legal council. An increased situation of need, which would necessitate an accordingly [larger income at free disposal], is regularly not present for persons who participate in a lawsuit. [If such an increased situation of need should be present in exceptional cases, it is always possible] make adequate deductions from the income to be used for Table 1 pursuant to Section 115.1. third sentence of the CLR.

b) Moreover, the different purposes of the aid, on the one hand social aid, on the other hand aid to finance legal council, already includes sufficient justification for the divergent settings of the income boundaries [for free disposal. The various kinds of aid] granted by the social law have the purpose to ensure an existence worthy of a human being. Such a securing of [the income level which is necessary to exist] is a task for the state more pressing than enabling [people] to engage in a lawsuit. Therefore one cannot find it arbitrary if the legislator [ranks securing of an income level which is necessary to exist higher than the aid to finance legal council] and sets different income boundaries [for free disposal] in both cases. And generally, it is upon the legislator to decide to what extent social aid, keeping in mind the [limited] availability of funds and other equally highly ranked tasks, can and should be granted.

c) Finally, the legislator is not obliged, in reference to the duty not to act arbitrarily, to increase the [net income below which no installments have to be paid to share costs of legal council from Table 1], because he oriented himself in the setting of [net income level with the aid of the monetary amounts granted by the Federal Social Aid Law. No kind of] ‘self-binding’ by the legislator results [from the original criteria to set the net income below which no installments have to be paid to share the costs of legal council from Table 1]. Even if one assumes, [like the High Court of Bremen does], that the monetary values in Table 1, if looked at from the [perspective of other adjustments of social policy grants], have not been adjusted for a relatively long time, in this lies not a violation of Article 3.1. of the Basic Law. It may remain unanswered, whether the [failure to adjust] the monetary values in Table 1 represents an [adversity or unfavorability in the system] (Systemwidrigkeit) in reference to other social policy grants. Such a [adversity or unfavorability of the system] alone would not amount to a violation of Article 3.1. of the Basic Law.

[Signed by all eight judges]

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