Federal Constitutional Court - Press office -
Press release no. 39/2013 of 28 May 2013
Order of 8 May 2013
1 BvL 1/08
“In-State-Residents” (Landeskinder) Provision in Former Bremen Act on
Study Accounts Unconstitutional
The provision that governed university tuition in Bremen between the
winter semester 2005/2006 and the summer semester 2010 is
unconstitutional. This is what the First Senate decided in an order
published today. While there is no overall prohibition of general
university tuition fees deriving from the Constitution, as long as fees
are not prohibitive and designed in a way that is socially responsible,
charging only out-of-state students with such fees constitutes a
violation of the participatory right to free and equal access to higher
education.
The Decision is Essentially Based on the Following Considerations:
1. Between the winter semester 2005/2006 and the summer semester 2010, a
university tuition provision was effective in Bremen which gave students
a study account of 14 semesters free of charge, and subsequently charged
them tuition. However, this only applied to “Landeskinder”
(in-state-residents) who actually reside in Bremen. Out-of-state
students only received a two semester study account free of charge, and
thus had to pay tuition from the third semester onwards.
2. The claimants in the initial proceedings challenged the fact that as
out-of-state students, they had to pay general university tuition fees
starting with the third semester. They were required to pay € 500.- for
the winter semester 2006/2007 because, different from
in-state-residents, they had no study account left after studying for
two semesters. The Bremen Administrative Court suspended the proceedings
and asked the Federal Constitutional Court to decide whether the
relevant § 6 sentence 1 in conjunction with § 3 sec. 1 and § 2 sec. 1 of
the Bremen Study Account Act (Bremisches Studienkontengesetz) were
compatible with the Basic Law.
3. Charging general tuition fees is, in principle, compatible with the
Basic Law, as long as the fees are not prohibitive and designed in a way
that is socially responsible.
a) For those who meet the subjective admission criteria, a right to free
and equal access to higher education at institutions created by the
state derives from the freedom of occupation (Art. 12 sec. 1 of the
Basic Law, Grundgesetz – GG) in conjunction with the right to equality
before the law (Art. 3 sec. 1 GG) and the principle of the social state
(Sozialstaatsprinzip).
This participatory right does not result in an individual claim to free
higher education. But tuition fees must not constitute an insurmountable
social obstacle to accessing higher education. This does not mean that
all hardships connected to charging tuition have to be compensated
completely by accompanying social measures. But the legislature must not
entirely ignore these circumstances in so far as they lead to unequal
education opportunities.
When charging tuition, the needs of people with low income thus have to
be taken into account appropriately. This also applies to the specific
challenges of people with handicaps, of students with children, or of
those who take care of others in their family. It is largely left to the
legislature how exactly the constitutional obligation to institute
general tuition fees in a way that is socially responsible is taken into
account.
b) Against this backdrop, tuition fees amounting to € 500.- per semester
are, in principle, not excluded by the Constitution.
aa) However, from the students’ point of view who, depending on the
source, need in between around € 530.- and € 812.- per month for general
living expenses, a fee of € 500.- per semester has to be considered as
clearly noticeable. But this does not necessarily mean that such a fee
is generally prohibitive. At present, there is no indication of a
“flight from the fees” from federal states with university tuition to
federal states without tuition.
bb) However, general tuition fees must be accompanied by measures which
ensure that they are socially responsible, so that the right to the
utmost degree of equal opportunities of access to higher education is
guaranteed. If there are no such measures, the existing disadvantages
due to insufficient financial means or a family background without
academic degrees are reinforced. Providing student loans that are
adequately designed is thus one of the central means by which to secure
the social responsibility of tuition fees. Apart from this, further
instruments in the tuition provisions like exceptions, reductions, or
waivers may be considered. Whether the provisions in the Bremen Act
submitted here meet these requirements in every aspect is not at issue
in the present proceedings.
4. The provisions presented for review that only charge out-of-state
students tuition from the third semester onwards violate the
participatory right derived from Art. 12 sec. 1 GG in conjunction with
Art. 3 sec. 1 GG to free and equal access to higher education in a
nationwide system.
a) The right to equality before the law of Art. 3 sec. 1 GG requires
that the legislature treats essentially equal issues equally, and
essentially unequal issues differently. It follows from Art. 12 sec. 1
GG, which establishes a participatory right in the specific area of
access to higher education, that in case of unequal treatment, there is
a stricter standard for justification.
b) The submitted provisions establish an unequal treatment of equal
issues for which no sufficiently viable reasons can be discerned as
justification.
aa) Under the Constitution, different laws in different federal states
are not only possible but wanted. The right to equality before the law
is thus not applicable if different legislatures treat issues
differently. However, it is applicable if, as in this case, there is
different treatment of in-state-residents and others in the laws of one
federal state.
bb) To justify such a provision, one cannot merely point to the place of
residence and the ensuing affiliation with one state as such, in this
case, Bremen. This is because federal state laws in the field of higher
education have a specific dimension that concerns the whole country and
thus affect the participatory right of free and equal access to higher
education that is recognised in all federal states. This requires
specific consideration among the federal states towards each other.
Despite being under the competence of the federal states, higher
education is a nationwide system in which not all study programs are
offered at all places, which requires a use of educational capacities
across state borders. In such a situation, one-sided benefits for
members of one state need to meet increased requirements to justify the
inequality.
cc) There are no sound factual reasons related to higher education to be
seen in the present case. The distinction between tuition fees
established by the Bremen Act is not justified because the students use
universities differently. Neither can the legislature justify the
distinction by claiming that it meant to motivate students to take up
residence in Bremen, so that the state would receive a higher allocation
of funds within the system of fiscal equalisation among the federal
states (Länderfinanzausgleich). The argument lacks the necessary factual
connection between the allocation of funds in the Länderfinanzausgleich
that become part of the general budget, and the financing of
universities. The attempt to connect these issues would also raise the
legitimate objection that the Land Bremen, in effect, uses out-of-state
benefits to justify charging out-of-state students with tuition fees.
This press release is also available in the original german version.
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