Federal Constitutional Court - Press office -
Press release no. 48/2011 of 29 July 2011
Order of 21 June 2011 – 1 BvR 2035/07 –
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
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.
This press release is also available in the original german version.
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