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Care for the Elderly Act provisionally not in force
Press Release No. 55/2001 of 29 May 2001
Order of 22 May 2001
2 BvQ 48/00
On 22 May 2001 the Second Senate of the Federal Constitutional Court ruled by way of a temporary injunction to provisionally suspend the entry into force of the Care for the Elderly Act (Altenpflegegesetz), which was envisaged for 1 August 2001.
The Government of the Free State of Bavaria, which filed a motion for a judicial review of the constitutionality of the Act, had also moved for the entry into force of the Care for the Elderly Act to be postponed until a decision had been taken regarding its motion for the judicial review. The Federal Constitutional Court allowed the motion. In essence, the decision is based on the following considerations:
The Federal Constitutional Court must apply extreme caution when exercising its authority to suspend the entry into force of a law by way of a temporary injunction. The issuing of a temporary injunction against a law always constitutes a serious encroachment on legislative discretion. Invoking the Federal Constitutional Court’s jurisdiction must not become a means by which the unsuccessful party in a legislative procedure delays the entry into force of a law. The reasons in favour of issuing a temporary injunction must therefore carry especial weight in the case of laws as compared to orders, which encroach less severely on the interests of the general public. A temporary injunction may not be issued where the motion on the main issue is manifestly inadmissible or ill-founded. Where that is not the case, however, and the court is not able directly to take a decision in the main issue, for example on account of the complexity of the legal problems, the court will carry out an impact assessment regarding the temporary injunction. In doing so, the disadvantages arising in the event that no temporary injunction is issued but the application for a judicial review of the constitutionality of the law is successful must be weighed against the disadvantages arising in the event that the opposite is the case.
1. The motion filed by the Government of the Free State of Bavaria is admissible and neither manifestly well-founded nor manifestly ill-founded. It raises the constitutionally significant question of whether the Federation has legislative jurisdiction to enact the Care for the Elderly Act. According to Article 73 of the Basic Law (Grundgesetz - GG), the Care for the Elderly Act is not a matter under the exclusive legislative power of the Federation. Federal jurisdiction could derive from no. 19 ("other medical occupations or practices") in the list of concurrent legislative powers under Article 74.1 GG. That would be the case if the professions in the field of care for the elderly were classed as “other medical occupations or practices” and the Care for the Elderly Act contained regulations governing admittance to these professions. However, it is impossible to unequivocally or readily settle these two issues based either on the existing case-law of the Federal Constitutional Court or on the legal literature, as the Second Senate sets out.
Even if Article 74 GG does indeed affirm jurisdiction to enact the Care for the Elderly Act, the next question to be raised is whether there is a need for a federal regulation in accordance with Article 72.2 GG. To that end the principal proceedings must clarify the as yet unresolved constitutionally significant issue regarding in what respect and to what extent the Federal Constitutional Court can examine the need for a federal regulation. The legislative intent of the amendment to Article 72.2 GG of November 1994 was to tighten the preconditions under which the Federation can resort to the concurrent legislative powers and to extend the Federal Constitutional Court's possibilities of carrying out a review. In view of that, it may not be possible to simply adopt the case-law of the Federal Constitutional Court regarding the old version of the Basic Law.
2. The Second Senate therefore carried out an impact assessment regarding the temporary injunction. It thereby came to the conclusion that the disadvantages predominate where a temporary injunction is not issued but the application for a judicial review of the constitutionality of a law is successful in the principal proceedings.
As the Senate sets out, refusing to issue a temporary injunction would in particular have serious consequences for job starters wishing to begin their training as caregivers for the elderly on 1 August 2001. Were they to begin their training based on the currently applicable legislation, but the Care for the Elderly Act was declared unconstitutional at a later stage, the time up until the decision is handed down in the principal proceedings would have been wasted. There is no guarantee that transitional provisions would enable them to complete the training they had already begun.
Those trainees who wish to undergo their training based on the Land (state) law currently applicable in Bavaria either on a part-time basis or as part of retraining would be denied this possibility if the federal law came into force (in the case of those undergoing retraining) or it would lead to considerable difficulties (increasing part-time training by up to 3.5 to a maximum of 5 years). These changes could stop people from deciding to train as a caregiver for the elderly. Even if they were to begin their training, but the Care for the Elderly Act was declared unconstitutional at a later date, it is unclear whether and how the period of training based on federal law up until that point in time could be fully credited. Finally, the entry into force of the Care for the Elderly Act bars that group of applicants who can begin their training at a technical college in accordance with currently applicable Land law, but who are no longer eligible in accordance with the federal Care for the Elderly Act. Should the Care for the Elderly Act prove to be unconstitutional, this group will have suffered temporal and personal disadvantages which cannot be redressed.
Furthermore, the entry into force of the Care for the Elderly Act and the resulting restructuring of the training would jeopardise the continued existence of smaller schools with only one class per academic year (53 out of 81 schools in Bavaria) and schools offering only part-time training (12 out of 81 schools in Bavaria), since the Care for the Elderly Act introduces the quasi-dual training system. According to Bavarian education law, colleges training caregivers for the elderly could thus no longer be run as technical colleges but only as full-time vocational colleges. That would have financial consequences for the providing authorities. All the technical colleges training caregivers for the elderly in Bavaria are run by non-state bodies and currently receive a 90 per cent operating grant. After restructuring technical colleges into full-time vocational colleges that grant would be reduced to 70 per cent. In addition, schools would have to be organised in a different way. Introducing the Care for the Elderly Act will most likely lead to block teaching, that is trainees undergo their training in care facilities and only go to college once a week. The resulting "idle time" for teaching staff would lead to a reduction in teaching hours or even to redundancies, which would in particular affect qualified caregivers. This considerable interference with the teaching staff's professional and private life could not be reversed were the motion for a judicial review of the constitutionality of the law to prove to be well-founded at a later stage.
As the Second Senate further sets out, it is to be expected that the uncertainty throughout the judicial review procedure and the restructuring phase would lead to a considerable drop in the number of students, leading to further consequences for the colleges and teaching staff whilst the proceedings were ongoing.
Some of the resulting disadvantages could be mitigated by means of measures taken by the Land government in the event that the application for a judicial review of the constitutionality of the law proves to be well-founded. However, the impact assessment cannot take account of that fact; it would result in the federal Länder (states) being obligated at times to provide parallel training courses, despite their conflicting legislative competence, for which they would have an unconstitutional federal regulation to thank. Nor can such an obligation be derived from the principle of federal comity (Bundestreue) and it would considerably exceed the bounds of reasonableness.
Were the motion for the issuing of a temporary injunction to be allowed and were the motion for a judicial review of the constitutionality of the law to be unsuccessful in the main issue, the current legislation would remain in force for longer than planned. Training for professions in the field of care for the elderly would then provisionally continue according to Land law. That would mean that the quality standards which the federal legislation intended to introduce would not be implemented. The transitional provisions in the Care for the Elderly Act would, however, guarantee completion of the training and subsequent job prospects for trainees in the professions in the field of care for the elderly. It is not to be feared that there would be any other considerable disadvantages beyond the delayed realisation of the concept of care for the elderly on which the statutory regulation is based, as the Senate states. As regards possible futile efforts on the part of those federal Länder which have already begun implementing the federal law, it must be assumed that at least some of the preparations which have already been made will not have been in vain.
The impact assessment shows that it is absolutely essential to issue the temporary injunction as filed for in the motion. It refers not only to that part of the Act which entered into force on 1 August, but also to those provisions which entered into force on the day of its promulgation.