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Provision on the partial release, depending on the duration of studies, from repayment of a loan under the Federal Training Assistance Act is partly unconstitutional
Press Release No. 48/2011 of 21 June 2011
Order of 21 June 2011
1 BvR 2035/07
Under the Federal Training Assistance Act (Bundesausbildungsförderungsgesetz - BAföG), means-tested financing for university studies is provided for a maximum period of assistance; half of the financing is provided as an interest-free loan. According to § 18b BAföG, a partial release from repayment is possible after successful graduation. Apart from a performance-related partial release, a partial release that depends on the duration of studies may be granted. According to the version of § 18b.3 BAföG of 22 May 1990, which is relevant in the instant case, students are released from the repayment of DM 5,000 of the loan if they successfully complete their studies four months before the expiration of the maximum period of assistance (big partial release); if the studies are completed only two months early, the amount of the release is DM 2,000 (small partial release).
Since the 1970s, the regulations governing the medical profession have provided that a minimum period of study of six years is required to obtain a licence to practice as a doctor. In the course of study of medicine, the standard period of study is six years and three months; it is made up of the minimum period of study and the time required for taking the last exam (three months at most). Since the mid-1980s, the maximum period of assistance, which had at first been regulated in the Maximum Period of Assistance Ordinance (Förderungshöchstdauerverordnung) for the individual courses of study, has been gradually adjusted to the standard periods of study. While since 1986 the maximum period of assistance in the course of study of medicine had been thirteen semesters, it had been calculated according to the standard period of study for all courses of study in the new federal Länder (states) already since German unification from 1 January 1991. This made it impossible from the outset for students of medicine in the new Länder to achieve a big partial release because they had to graduate in a minimum period of study of twelve semesters and were therefore unable to complete their studies four months before the end of the maximum period of assistance of six years and three months. The shorter maximum period of assistance also applied to students of medicine who had taken up their studies in the old Länder from the summer semester 1993 onwards. However, students who had completed their fourth subject-related semester in the old Länder by 1 October 1994, which was the case for students who had taken up their studies in the winter semester 1992/93 or earlier, were indeed able to achieve a big partial release because according to a transitional arrangement, the old maximum period of assistance of thirteen semesters still applied to them.
The complainant took up his studies of medicine in the new federal Länder in the winter semester 1991/92; he successfully completed it in the first month after the end of the 12th semester. During his studies, he received training assistance under the BAföG. In the procedure determining the repayment modalities, the Federal Office of Administration (Bundesverwaltungsamt), taking the maximum period of assistance of six years and three months as a basis, fixed the end of this period at the month of December 1997 and merely awarded the complainant a small partial release because he had completed his studies only two months before the end of the maximum period of assistance. His actions brought before the administrative courts, in which he essentially challenged the denial of the big partial release, were unsuccessful.
The First Senate of the Federal Constitutional Court has decided that § 18b.3 sentence 1 BAföG, in its version relevant in the instant case as well as in its subsequent versions, is incompatible with the general principle of equality (Article 3.1 of the Basic Law (Grundgesetz - GG)) to the extent that provisions relating to a minimum period of study on the one hand and to the maximum period of assistance on the other hand make it objectively impossible for students to achieve a big partial release. To that extent, the courts and administrative authorities may no longer apply the provision. The legislature is ordered to pass until 31 December 2011 a new regulation that takes due account of equality for all students affected whose administrative procedures or judicial proceedings concerning the granting of a big partial release have not yet achieved administrative finality or are not yet res judicata.
Moreover, the Senate has rescinded the administrative courts' decisions rendered on the denial of the big partial release because they, just as the decision of the Federal Office of Administration, violate the complainant's fundamental right under Article 3.1 GG, and has remitted the matter to the administrative court of first instance for a fresh ruling.
In essence, the decision is based on the following considerations:
1. The complainant's fundamental right to equal treatment is violated by § 18b.3 sentence 1 BAföG in conjunction with the relevant provisions on the maximum period of assistance on the one hand and on the minimum period of study on the other hand as well as by the resulting denial of a big partial release because for him, as a student of medicine in the new Länder, it was objectively impossible from the outset to benefit from a big partial release.
On the one hand, he is treated unequally in comparison with students of medicine who took up their studies in the winter semester 1992/1993 or earlier in the old Länder and completed their fourth subject-related semester by the summer semester 1994 because the maximum period of assistance that applied to them was thirteen semesters, which made it possible for them to achieve a big partial release if they completed their studies before the expiry of the second month after the end of the minimum period of study. On the other hand, unequal treatment exists with regard to the students of other courses of study in which no minimum period of study exists at all or the minimum period of study and the maximum period of assistance are calculated in such a way that it is possible to graduate four months before the end of the maximum period of assistance.
Such unequal treatment is not justified.
It is true that the legislature has latitude in granting benefits; in particular with regard to handling German unification, the legislature may also pass regulations that involve hardships. No reason is apparent, however, for denying the students of medicine in the new Länder the benefit of a big partial release from the outset while it was still available on a transitional basis after German unification to students of medicine in the old Länder. The purpose of § 18b.3 sentence 1 BAföG to provide incentives for graduating as soon as possible exists with regard to students of medicine in the new and in the old Länder alike.
Even the legislature's authority to make typifying and generalising arrangements when regulating mass phenomena may not justify the above-mentioned unequal treatment. Insufficiently taking into account statutory minimum periods of study and their relation to the maximum period of assistance can exclude entire courses of study, and thus a large number of students, from the possibility of a big partial release. Such exclusion can be avoided without unreasonable effort by harmonising the arrangements on partial release, maximum period of assistance and minimum period of study. Therefore the exclusion is not objectively required for reasons of administrative practicality or other reasons; its sole cause is a structural error of the legal concept.
The discrimination with regard to the students of other courses of study is not justified by other substantive reasons. The fact that the course of medicine has the longest maximum period of assistance of all university courses is due to the extent of the studies and to the minimum period of study, which is determined by domestic and European law. There is no sound substantive reason for denying students a big partial release because they decided in favour of an extensive course of study. Instead, from the perspective of the recipients of training assistance, there is even a greater need for a big partial release if the periods of study and of assistance are long because as a general rule, the amount of the loan to be repaid will be higher than for shorter courses of study.
2. The violation of the fundamental right to equal treatment concerns not only students of medicine in the new Länder but also students of medicine in the old Länder from the summer semester 1993 onwards in comparison to courses of study which can fundamentally satisfy the requirements of the big partial release in accordance with the minimum periods of study and maximum periods of assistance that apply to them. Furthermore, a similar violation of equality concerns all other courses of study that prescribe minimum periods of study and to which a maximum period of assistance applies that is less than four months longer than the minimum period of study.
The new legislation to be passed by the legislature must, regardless of the graduation date, retroactively cover all administrative procedures or judicial proceedings regarding the granting of a big partial release which have not yet achieved administrative finality or are not yet res judicata and which concern a course of study in which it was impossible from the outset to satisfy the requirements of § 18b.3 sentence 1 BAföG due to diverging legal provisions on minimum periods of study and on the maximum period of assistance.