Federal Constitutional Court - Press office -
Press release no. 91/2008 of 30 October 2008
Order of 14 October 2008 – 1 BvR 2310/06 –
Denial of legal advice and representation in matters regarding
child benefit according to the Income Tax Act unconstitutional
The complainant received a notice from the family allowance scheme that
she was to refund surplus child benefit. She requested legal advice and
representation for this according to the Act on Legal Advice and
Representation for Citizens with Low Income (Beratungshilfegesetz -
BerHG). The Local Court (Amtsgericht) did not comply with her request,
but rejected it on grounds that matters regarding child benefit were
allegedly attributed to the jurisdiction of the finance courts, and
were hence said not to give rise to a right to legal advice and
representation according to the clear wording of § 2 BerHG. According
to this provision, legal advice and representation were granted in
matters related to social law, but not to fiscal law.
The First Senate of the Federal Constitutional Court overturned this
ruling of the Local Court by order of 14 October 2008, and found that §
2.2 BerHG is incompatible with Article 3.1 of the Basic Law
(Grundgesetz - GG) insofar as the provision does not facilitate the
granting of legal advice and representation also in matters related to
fiscal law. For the transitional period until such time as a new
constitutional provision is handed down by the legislature, for which
it has various possibilities for a reform at its disposal, legal advice
and representation is however in principle also to be granted in
matters related to fiscal law insofar as the general statutory
preconditions of § 1.2 BerHG apply thereto.
In essence, the ruling is based on the following considerations:
I. 1. The constitutional standard of equality of legal protection,
derived from the principle of the social welfare state, from
the principle of the rule of law and from the general principle
of equality, has so far been applied solely in granting
judicial legal protection. By this principle, in particular the
non-constitutional courts' examination of the prospects for the
success of the intended assertion or defence of rights was
measured as a precondition for the grant of legal aid. Whether
this also leads to an obligation to approximate the status of
those without means to the moneyed for out-of-court legal
protection was, by contrast, deliberately left open by the
Federal Constitutional Court so far. The general principle of
equality, in conjunction with the principle of the social
welfare state and the principle of the rule of law, however
requires that the legislature also takes the necessary
precautions in the out-of-court field so that plaintiffs do not
fail from the outset in asserting and safeguarding their rights
due to a lack of income or to insufficient assets.
2. The consideration of the Federal Constitutional Court in
respect of the right to equality of legal protection in the
procedural field, namely that equal access to the law must be
possible to all regardless of their income and assets, also
applies mutatis mutandis to out-of-court advice. In view of the
fact that the law permeates almost all areas of life, citizens
rely on expert legal advice in many cases in order to be able
to recognise and evaluate their rights and to decide whether
they can assert them - where appropriate also in court - and
with what prospects for success. Not different to facilitating
access to the courts, Article 3.1 GG in conjunction with the
principle of the social welfare state and the principle of the
rule of law, and also in creating the legal framework to
guarantee equality of the possibility to assert rights, does
not require complete equality of those without means with the
moneyed, but only that they be largely approximated. Here too,
those without means only need to be equated with those among
the prosperous who, in choosing to avail themselves of legal
advice, also take into account and sensibly weigh up the costs
incurred thereby. In particular, plaintiffs may be initially
referred to other possibilities to acquire expert assistance in
asserting their rights.
II. The legislature has considerable latitude when creating the legal
framework to guarantee the possibility to defend rights. It may
hence use different methods to regulate the equality of the
possibility to assert rights of those who do not have sufficient
assets with those who do. With the Act on Legal Advice and
Representation for Citizens with Low Income (BerHG) of 18 June
1980, the legislature in principle did justice to the
constitutional requirements to guarantee equality of the
possibility to assert rights.
III. Having said that, the provision contained in § 2.2 BerHG,
according to which legal advice and representation are only
granted in the matters explicitly listed by legal fields, is not
compatible with the general principle of equality. The exhaustive
listing of matters amenable to legal advice and representation,
including those of social law, but not of fiscal law, leads to
unequal treatment of plaintiffs in matters amenable to legal
advice and representation as against those in matters not covered
by the list. The delimitation between matters of social law, which
are amenable to legal advice, and representation and those of
fiscal law, which are not, is orientated in line with the
available legal channels. In matters regarding child benefit, this
leads to there being no possibility to grant legal advice and
representation insofar as - as in the vast majority of cases - it
is a matter of child benefit according to the Income Tax Act
because legal recourse to the finance courts is made available
pursuant to § 33.1 no. 1 of the Rules of Procedure of the Finance
Courts (Finanzgerichtsordnung - FGO). By contrast, legal advice
and representation can in principle be granted in matters of child
benefit according to the Federal Child Benefit Act
(Bundeskindergeldgesetz), as well as otherwise in social-law
matters. There is certainly no viable factual reason for this
unequal treatment in the relationship between plaintiffs in the
field of social law and those in the field of fiscal law, and
certainly not for the concomitant unequal treatment between
beneficiaries of fiscal-law and social-law child benefit.
1. By stating in § 2.2 sentence 1 no. 4 BerHG that legal advice
and representation also covered matters "of social law", the
legislature, by introducing the Act Amending the Act on Legal
Advice and Representation for Citizens with Low Income and
other Statutes (Gesetz zur Änderung des Beratungshilfegesetzes
und anderer Gesetze) of 14 September 1994, renounced the
conception of the legislature, namely to limit the factual area
of application of the Act on Legal Advice and Representation
for Citizens with Low Income that had been initially reasoned
with the presumption that there was little demand for advice,
and that it was easily available elsewhere in matters related
to labour, social and fiscal law. The other advice available in
matters related to social law is by no means inferior to that
available in matters related to fiscal law.
2. The unequal treatment ascertained to the detriment of
plaintiffs in fiscal law also cannot be factually justified
with the occasionally submitted consideration alleging that
being able to obtain legal advice at low rates in the field of
fiscal and levy law was not an urgent problem for citizens with
a low income. Payment obligations under fiscal law may also
affect the needy within the meaning of the law on legal advice
and representation, particularly also in matters related to
child benefit, which is granted regardless of taxable income.
3. Removal of fiscal law in both general child benefit, and in
child benefit under fiscal law in particular, from the factual
area of application of legal advice and representation also
cannot be justified by invoking the concept of a
constitutionally permissible definition of typical facts and
classification. These too must correctly implement the
regulatory concept pursued by the legislature. The legislature
however already renounced the originally intended regulatory
concept, namely the concentration of public funds in areas in
which the need for reasonably priced legal advice was
particularly prominent, with the legal amendment in 1994.
IV. This ascertained violation of the principle of equality cannot be
remedied by an interpretation in conformity with the constitution
of § 2.2 sentence 1 no. 4 BerHG. For this reason, not only the
interpretation of this provision favoured by the Local Court
breaches Article 3.1 GG, but the indirectly impugned provision
contained in § 2.2 BerHG itself is also incompatible with the
Basic Law.
This press release is also available in the original german version.
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