Headnote

to the Order of the First Senate of 29 October 2002

– 1 BvL 16/95 –

– 1 BvL 17/95 –

– 1 BvL 16/97 –

1. Decision regarding the equal treatment of different forms of family under the law on child benefit

FEDERAL CONSTITUTIONAL COURT

– 1 BvL 16/95 –

– 1 BvL 17/95 –

– 1 BvL 16/97 –

IN THE NAME OF THE PEOPLE

In the proceedings for the constitutional review of

– 1 BvL 16/95 –

– 1 BvL 17/95 –

– 1 BvL 16/97 –

the Federal Constitutional Court – First Senate – with the participation of Justices

President Papier,

Jaeger,

Haas,

Hömig,

Steiner,

Hohmann-Dennhardt,

Hoffmann-Riem,

Bryde

held on 29 October 2002:

1. § 3 (3) sentence 1 of the Federal Child Benefit Act in the version of the First Act Implementing the Savings, Consolidation and Growth Programme of 21 December 1993 (BGBl I p. 2353) was incompatible with Article 3 (1) of the Basic Law (Grundgesetz – GG).

2. In the event of the legislature not replacing the unconstitutional provision with a new provision by 1 January 2004 at the latest, it is to be substituted through application of the law applicable until 31 December 1993 to as yet uncompleted sets of proceedings.

REASONS:

A.

The proceedings relate to the question of the constitutionality of a provision of the Federal Child Benefit Act applicable from 1994 to 1995, in accordance with which only parents who were married with one another and co-habiting were able to determine to which of them child benefit was to be granted. Parents who did not meet these requirements were unable to make such a “determination of the entitled party”, with the consequence that they might forgo advantages with regard to the amount of child benefit. The submitting courts consider this provision to be incompatible with Article 3(1) of the Basic Law, the Social Court also with Article 6(1) and (5) of the Basic Law.

I.

1. § 3(1) of the Federal Child Benefit Act has provided since the entry into force, on 1 July 1964, of the Federal Child Benefit Act of 14 April 1964 (BGBl I p. 265) that child benefit in each case is granted to only one of the entitled parties, in other words that it cannot be shared. In the event of several persons – as a rule the mother and father – meeting the conditions for a claim, competitions for a claim would have to be resolved. For instance, the legislature stipulated in § 3(2) of the Federal Child Benefit Act the priority of foster parents, grandparents and siblings, as well as of stepparents, before the parents. It regulated the relationship between the parents in § 3(3) of the Federal Child Benefit Act.

§ 3(3) of the Federal Child Benefit Act (in the version of the Unification Treaty (Einigungsvertrag ) of 31 August 1990 (BGBl II pp. 889 and 1093)) read as follows until 31 December 1993:

(3) If the father and the mother meet the conditions for a claim in respect of a child, child benefit shall be granted to the one whom they determine to be the entitled party. As long as they have not made such a determination, child benefit shall be granted to the one who largely maintains the child; however, it shall be granted to the parent who has personal custody of the child or the sole parental right to bring up the child.

2. By means of the First Act Implementing the Savings, Consolidation and Growth Programme of 21 December 1993 (BGBl I p. 2353), § 3 (3) of the Federal Child Benefit Act took on the version which is the subject-matter of the submission proceedings. The provision read as follows from 1 January 1994 to 31 December 1995:

(3) If spouses who are not permanently separated meet the conditions for a claim in respect of a child, child benefit shall be granted to the one whom they determine as the entitled party. Insofar as a determination has not been made, child benefit shall be granted to the one who largely maintains the child; however, it shall be granted to the parent who has personal custody of the child or the sole parental right to bring up the child.

This new version was based on a draft Bill of the Federal Government (Bundestag printed paper (Bundestagsdrucksache – BTDrucks) 12/5502). The reasoning read as follows, inter alia (loc cit., p. 45):

“It corresponds to the principle of payment of child benefit in line with the actual maintenance burden if child benefit is paid between unmarried parents to the one who largely maintains the child, or who has sole personal custody of the child. The previously permissible determination of the entitled party also among unmarried parents facilitates an increase in the child benefit claim through the inclusion of children who a parent does not share with his or her present partner, also if the parent does not largely maintain any of his or her children and he or she also does not have personal custody of a child. Furthermore, entitled parties who are married but permanently separated from their spouses can to date claim such advantages.”

Parents could be interested in freely determining the entitled party if not identical but different circumstances applied to them which had an impact on the amount of child benefit. For instance, the so-called advantage acquired through additional counted children could markedly influence the amount of child benefit. This advantage acquired through additional counted children emerged from § 10 of the Federal Child Benefit Act, in accordance with which the amount of child benefit was graduated according to the ordinal number of the child. In 1992 to 1995, monthly child benefit was DM 70 for the first child, DM 130 for the second child, DM 220 for the third child and DM 240 for the fourth and each further child. From a certain annual income of the entitled party, the amount was reduced to DM 70 for the second child and to DM 140 for each further child. In calculating the ordinal number of the child, in accordance with § 10 (1) sentence 2 of the Federal Child Benefit Act all the children of the entitled party (as “additional counted children”) were additionally counted, even if another entitled person drew child benefit for such a child with priority. If only one parent had additional counted children, it was advantageous to determine this parent as the entitled party. For unmarried parents, and for parents who were married but separated, the provision submitted for constitutional review eliminated this possibility to determine the party entitled to child benefit, which until then had been available to all parents, but maintained it for married parents who were co-habiting.

3. The 1996 Annual Tax Act (Jahressteuergesetz ) of 11 October 1995 (Federal Law Gazette I p. 1250) comprehensively re-worded the law on child benefit. § 64 (2) sentences 1 to 3 of the Income Tax Act (Einkommensteuergesetz – EStG) applied from 1 January 1996 onwards to taxpayers with unlimited tax liability:

(2) Among several entitled parties, child benefit shall be paid to the one who has accepted the child in his or her household. If a child has been accepted in the joint household of parents, of one parent and his or her spouse, of foster parents or of grandparents, they shall determine the entitled party inter se. If no determination is made, the guardianship court shall determine the entitled party if so requested.

The provision contained in § 3.2 sentences 1 to 3 of the Federal Child Benefit Act applied to taxpayers without unlimited tax liability from 1 January 1996 onwards:

(2) If several persons meet the conditions for a claim in respect of a child, child benefit shall be granted to the person who has accepted the child in his or her household. If a child has been accepted in the joint household of parents, of one parent and his or her spouse, of foster parents or of grandparents, they shall determine the entitled party inter se. If no determination is made, the guardianship court shall determine the entitled party if so requested.

II.

The plaintiffs in the original proceedings are fathers with several children whose child benefit grants were rescinded by the defendant Federal Employment Service on the basis of the provisions contained in § 3(3) of the Federal Child Benefit Act applicable in 1994 and 1995, and whose families thereby lost the advantage acquired through additional counted children.

1. The plaintiff in the original proceedings in the proceedings on the constitutionality of a statute 1 BvL 16/95 has four children. Both older children come from a now dissolved marriage of the plaintiff, and lived with their mother. Both younger children were born out of wedlock. They lived in a household with their mother and the plaintiff. Prior to the amendment of § 3(3) of the Federal Child Benefit Act, the plaintiff, who was determined as the entitled party, received child benefit of DM 220 per month for his third child, the son S., his two older children from the dissolved marriage being taken into account. The mother of S., who had custody of him, her first child, would by contrast only have been entitled to claim child benefit of DM 70. The defendant [authority] rescinded the grant of child benefit for S. on expiry of August 1994, referring to the new wording of § 3(3) of the Federal Child Benefit Act; a determination of the entitled party among unmarried parents was hence said no longer to be possible.

The Social Court suspended the proceedings and submitted to the Federal Constitutional Court the question for a ruling as to whether § 3(3) sentence 1 of the Federal Child Benefit Act in the version valid from 1 January 1994 is compatible with Article 3(1) in conjunction with Article 20(1) of the Basic Law, as well as with Article 6(1) and (5) of the Basic Law.

In the view of the Social Court, this is not the case. The new provision was said to be clear in terms of its wording, position in the legislative system and the declared intention of the legislature, and hence not amenable to an interpretation in conformity with the constitution. The different treatment of the parents was said to be arbitrary, to lead to random results and to prevent the realisation of the highest possible child benefit for a not inconsiderable group of families. Because of the changes which had taken place within society, the group of individuals concerned was said to constitute a not insignificant group whose financial situation is additionally worse on average than the group of parents alleged to be receiving preferential treatment. The unequal treatment was said to be justified neither by the state’s need for finances, nor by a lesser legal position of those concerned. All communities of adults with (their) children were said to be equally under the protection of Article 6.1 of the Basic Law, regardless of their legal form. It was said not to be permissible to differentiate by the nature or quality of the relationships between the parents. The abuse concept, which the legislature highlighted according to the reasoning, was said not to be suitable to justify unequal treatment of the two groups.

2. The plaintiff in the original proceedings in the proceedings on the constitutionality of a statute 1 BvL 17/95 is the father of five children. Three older children come from an earlier marriage of the plaintiff, and lived with their mother. The two younger children S. and St. are children of the plaintiff and his partner together. Prior to the new wording of § 3(3) of the Federal Child Benefit Act, the plaintiff, who was determined as the entitled party for S. and St., drew child benefit totalling DM 480 per month because they were treated under the law on child benefit as his fourth and fifth children. The mother of S. and St., who had sole custody, would only have received a child benefit totalling DM 200. The defendant [authority] rescinded the child benefit grant for the plaintiff on expiry of August 1994 since in accordance with the new wording of the Federal Child Benefit Act a determination of the entitled party among parents who were not married was no longer permissible.

The Social Court suspended the proceedings with the reasoning stated at II 1, and submitted to the Federal Constitutional Court the question for a ruling as to whether § 3(3) sentence 1 of the Federal Child Benefit Act in the version applicable from 1 January 1994 is compatible with Article 3(1) in conjunction with Article 20(1) of the Basic Law, as well as with Article 6(1) and (5) of the Basic Law.

3. The plaintiff in the original proceedings in the proceedings on the constitutionality of a statute 1 BvL 16/97 lived with the mother of his son M. in a non-marital community. Furthermore, his daughter K., a child from an earlier marriage, of whom the plaintiff had custody, lived in this household. The plaintiff has another two children from a previous marriage who did not live in his household. The original proceedings relate to the child benefit for the son M., for whom the plaintiff, who was determined as the entitled party, received child benefit amounting to DM 140 per month until February 1994 because M. was treated as the plaintiff’s fourth child. The mother would only have been entitled to a child benefit claim of DM 70 because, for her, M. was the first child. The defendant [authority] rescinded the child benefit grant related to M. from 1994 on the basis of the amendment of § 3(3) of the Federal Child Benefit Act because unmarried parents were said now no longer to be able to determine an entitled parent. Objection, action and appeal on points of fact and law proceedings were unsuccessful.

The Federal Social Court suspended the proceedings and submitted to the Federal Constitutional Court the question for a ruling as to whether § 3(3) of the Federal Child Benefit Act in the version valid from 1 January 1994 is compatible with Article 3(1) of the Basic Law.

In the view of the Federal Social Court, this is to be negated. The provision is said to be arbitrary and to lead to a differentiation between co-habiting married couples on the one hand and separated married couples, as well as non-marital communities, on the other hand, which is alleged to be incompatible with Article 6(1) of the Basic Law. This differentiation is said to be manifestly inexpedient. Already the starting point of the legislature’s reasoning, in accordance with which it is allegedly a principle of the payment of child benefit that among unmarried parents the one who largely maintains the child or who is entitled to sole custody is entitled to draw the benefit is alleged to be incorrect. Rather, the entitlement to draw child-related state benefits is said to reflect the fundamental equality of the various forms of maintenance (care or financial allowances). The right to draw benefits of only one parent with priority for the person with custody is said only to be regarded as permissible if it is only a temporary attribution which does not impact the amount of child benefit. With parents who have children from an earlier union, however, the entitlement to draw benefits is said to be a factor determining the amount of child benefit because of utilisation of the advantage acquired through additional counted children.

The goal of the legislature, namely to avoid “unjustified” advantages acquired through additional counted children, is said to be attainable with the new provision only for the group of parents who are not married. The provision however allegedly goes beyond its goal in cases in which additional counted children are not only counted but are also maintained. This is said to be the case of the plaintiff, who had accepted his daughter K. in his household and was taking care of her maintenance. Conversely, married parents with children from earlier relationships are said to continue to benefit from the advantage acquired through additional counted children if neither maintenance obligations exist, nor custody is exercised. In the view of the Federal Social Court, the legislature could only have achieved the goal of eliminating the advantage acquired through additional counted children in cases in which neither maintenance nor custody exist towards a child by restricting the advantage acquired through additional counted children in § 10 of the Federal Child Benefit Act to children for whom maintenance is indeed provided, or with regard to whom custody exists.

The constitutional protection afforded by Article 6(1) of the Basic Law is alleged to apply not only to intact marriages, but to relate equally to the community of parents and children, and also to cover the community of children born out of wedlock with their parents who are not married to one another, or only with one parent. Article 6(1) of the Basic Law may well permit a privilege towards marriage as against non-marital communities. An improvement of the so-called normal family as against that consisting of unmarried parents and their children however is said not to be permissible. An interpretation of the new regulation in conformity with the constitution is said not to be possible.

III.

Statements on the submissions have been made by the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth on behalf of the Federal Government, the Federal Social Court (in the proceedings 1 BvL 16/95 and 1 BvL 17/95), the Federal Employment Service (Bundesanstalt für Arbeit ) (in the proceedings 1 BvL 16/95 and 1 BvL 17/95), as well as the plaintiff in the original proceedings in the proceedings 1 BvL 17/95.

1. The Federal Ministry considers the provision submitted for examination to be constitutional.

The reason for differentiating is said to emerge from the purpose of graduating child benefit by the child’s ordinal number in order to particularly promote families with many children. A disproportionate burden is said however only to occur in family households with a correspondingly large number of children. If the children live in various family households, they form different families. Worthiness for promotion is then determined by the conditions found in the respective individual family. For this reason, the legislature has not been denied the possibility to rule out in general terms the determination of entitled parties among parents belonging to two different households.

The restriction of the determination of the entitled party to married parents co-habiting in a household is said to be permissible because the financial and legal circumstances of married and unmarried co-habiting parents under the law on child benefit is said to be so materially different as to justify the diverging provisions.

It has been open to the legislature to treat unmarried and married couples equally, as indeed took place from 1996 onwards in the law on child-raising benefit and in the law on child benefit. This is however said to have been problematic because child benefit is linked to the income in accordance with § 10(2) and (3) of the Federal Child Benefit Act. The amount of child benefit would then have depended on the income of a partner who under certain conditions would not have been entitled to child benefit at all. Therefore, in the legal amendment as in January 1994 the legislature has been guided by the consideration that non-marital communities are not to be regarded as economic communities.

Considerations of the law on custody are also said to justify a differentiation. Attribution to the parent with sole custody is said not to be arbitrary as it is linked to the different degrees of legal relations between the child and his or her parents.

If the Federal Social Court considers discrimination to consist in the customary exclusion of fathers of children born out of wedlock from the advantage acquired through additional counted children, it is said to ignore the other different provisions of compensation for family burdens and income taxation. The treatment of married and unmarried couples is said to have been so different in the period under dispute that the random lower amount of the child benefit claim is said not to be in breach of equality.

2. […]

3. The Federal Employment Service considers the […] new wording of § 3(3) sentence 1 of the Federal Child Benefit Act […] to be compatible with the Basic Law. In accordance with Article 6(1) of the Basic Law, marriage and the family are said to enjoy the special protection of the state. A non-marital community with children is however said not to constitute a family within the meaning of Article 6(1) of the Basic Law, but to form two incomplete families. From the point of view of the promotion of marriage and the family, it is said to be justifiable to favour marriage in the sense that in principle only married parents living in an intact marriage are to be granted the possibility to receive the highest child benefit rate. The possibility provided for in § 3(4) sentence 2 of the Federal Child Benefit Act for the guardianship court to determine the entitled party was said to ensure avoidance of unfairness and hardship in individual cases.

B.

I.

§ 3(3) sentence 1 of the Federal Child Benefit Act in the impugned version was incompatible with Article 3(1) of the Basic Law.

1. The general principle of equality (Article 3(1) of the Basic Law) requires all persons to be treated equally before the law. This does not however deny the legislature the possibility to make any differentiation whatsoever. The legislature has latitude here in the field of benefit-granting state activity for the delimitation of the favoured groups of individuals (see Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts – BVerfGE 99, 165 (178)). However, the more it is possible for unequal treatment to have a disadvantageous impact on the implementation of freedoms that are protected by fundamental rights, the narrower are the limits that emerge for the legislature from the general principle of equality, (see BVerfGE 82, 126 (146); 88, 87 (96)). With unequal treatment of families, which are protected by Article 6(1) of the Basic Law, also including unmarried parents and their children, it should therefore be examined whether reasons of such a nature and weight exist for the envisioned differentiation that they can justify the unequal legal consequences (see BVerfGE 88, 87 (97)).

2. The new wording of § 3(3) sentence 1 of the Federal Child Benefit Act led to unequal treatment between co-habiting spouses and their families on the one hand and other parents and their families on the other to gain a so-called advantage acquired through additional counted children in the drawing of child benefit.

In accordance with § 10(1) of the Federal Child Benefit Act, child benefit increased disproportionately with a higher number of children. In calculating the ordinal number of the child, all children of the entitled party were counted as “additional counted children” in accordance with § 10(1) sentence 2 of the Federal Child Benefit Act, even if a different person entitled to claim took priority in drawing child benefit for such a child. It was hence advantageous for parents to determine as the entitled party the parent who had the most additional counted children.

The provision submitted for review eliminated this possibility open until then to all parents to determine the entitlement to child benefit for unmarried parents and for parents who were married but separated, but maintained the possibility for co-habiting married parents (§ 3(3) sentence 1 of the Federal Child Benefit Act). § 3(3) sentence 2 of the Federal Child Benefit Act, which regulated the consequences of the lack of such a provision, seems by its wording to refer only to the parents named in sentence 1 who had not determined an entitled party. If however § 3(3) sentence 2 of the Federal Child Benefit Act is compared with its predecessor provision, and if furthermore the Federal Government’s reasoning of the Act is taken into account (see Bundestag printed paper 12/5502, p. 45), sentence 2 can be understood with the non-constitutional case-law such that it was to cover all other cases, in other words both married co-habiting parents who had not made a determination of the entitled party, and all other parents because they were generally excluded from the possibility of determining an entitled party in sentence 1.

Hence, as becomes clear in the original proceedings for different family constellations, the new provision reduced the family income for families in which the parents were not married or were separated, whilst families with married co-habiting parents are unaffected by the amendment. Restricting this impact to cases in which no earlier provision yet existed, or analogous application of § 3(3) sentence 1 of the Federal Child Benefit Act to non-marital communities, cannot be considered against the will of the legislature.

3. This unequal treatment is not justified on the merits.

a) The unequal treatment and the justifying reason must be suitably interrelated. This did not take place – even taking account of the latitude available to the legislature – in the provision contained in § 3(3) sentence 1 of the Federal Child Benefit Act in the impugned version, as no reasons are manifest that would be suitable to justify the different treatment of the groups of parents by the legislature handing down child benefit law in 1994 and 1995.

b) The goal of the new provision was however constitutional in its approach.

The First Act Implementing the Savings, Consolidation and Growth Programme aimed to achieve savings in the social welfare area (see Bundestag printed paper 12/5502, pp. 1-2). To this end, the advantage acquired through additional counted children was to be restricted by means of the determination of the entitled party. This is permissible in principle.

The legislature has latitude in deciding on the manner in which it wishes to realise the protection of the family entrusted to it (see BVerfGE 43, 108 (124); 82, 60 (81)). It has other community interests to accommodate in addition to promotion of the family, and in doing so above all to safeguard the smooth functioning and balance of the whole (see BVerfGE 82, 60 (82); 87, 1 (35-36); 103, 242 (259)). Accordingly, the general duty of the state to ensure compensation for family burdens can be derived from the value decision contained in Article 6 (1) of the Basic Law in conjunction with the principle of the social welfare state, but not the ruling on the degree to which and the means by which such social compensation is to be carried out (see BVerfGE 87, 1 (36); 103, 242 (259)).

The legislature is hence not obliged to grant an advantage acquired through additional counted children. If it permits child benefit to increase progressively with a higher number of children, it can restrict this impact to those cases in which the older children are in fact largely maintained, live in the household of the entitled party or the entitled party has custody of them.

c) It is also not constitutionally prohibited to use marital status as a basis for resolving competition between several parties who are entitled to child benefit. Since married co-habiting parents as a rule share maintenance and custody, it suggests itself to carry out entitlement, as a general rule, by joint determination. With other parents the legislature can carry out an attribution which is orientated primarily to custody. Single parents in particular can thus receive the benefit directly and do not depend on receiving compensation through maintenance payments. The different situation of the various groups of parents however does not justify restricting to married co-habiting parents the statutorily granted possibility of changing the determination of the entitled party through agreement. According to the intention of the legislature, the purpose of excluding all other parents by the new provision submitted for review was based not on the different situations of various family types, but on ruling out the advantage acquired through additional counted children if the older children were neither largely maintained and there was no custody for them (see Bundestag printed paper 12/5502, p. 45). Compatibility with the principle of equality must be measured by this goal.

d) The differentiation by forms of family is unsuited for the achievement of this legislative goal.

There is no recognisable connection between, on the one hand, the relationship of a person entitled to child benefit and his or her older children from other unions and, on the other hand, the form of co-habitation with the mother or father of the child for whom child benefit is paid.

For parents who are married and co-habiting, the right to determine, and hence the advantage acquired through additional counted children, were maintained also where the legislature precisely intended to reduce it if the recipient of the increased child benefit neither largely paid maintenance for, nor had custody of, the additional counted children. Conversely, the advantage acquired through additional counted children of the other parents was forgone even if – as in the initial case of proceedings 1 BvL 16/97 – children from the earlier union had been accepted in the household and there was custody of them.

e) This result also cannot be justified with the power of the legislature to impose a blanket regulation on frequently occurring manifestations (see BVerfGE 96, 1 (6); 101, 297 (309)). There are no indications that the situation in which from the point of view of the legislature the advantage acquired through additional counted children is to be reduced takes place more regularly among unmarried or separated parents than among those who are married and co-habiting.

A constitutionally justifiable provision, as the Federal Social Court correctly finds, would have been able to set in at the advantage acquired through additional counted children directly. The restriction created by the legislature of the determination of entitled persons to married co-habiting parents was by contrast unsuited to achieve the legislative goal.

f) The unequal treatment is also not justified by the special protection of marriage in Article 6(1) of the Basic Law. If the Federal Ministry refers in justification of maintaining the possibility of determination among married couples to the burden of maintenance incumbent on the spouse by virtue of additional counted children which the partner had at least to partly bear through a reduction in standard of living, this runs counter to the legal reasoning that the advantage acquired through additional counted children was in particular not to be granted solely because of maintenance obligations. If however one permits the existence of such maintenance obligations as justification for the advantage acquired through additional counted children, as the legislature did until the new provision, this applies in turn to all families, given that a child born out of wedlock is also indirectly affected by a parent having maintenance obligations for children from other relationships.

g) The unequal treatment is finally also not justified by the determination of the entitled party with unmarried parents in addition to the advantage acquired through additional counted children being able to have other advantages not attainable for married couples.

The amount of the child benefit was determined not only by the ordinal number of the children and the advantage acquired through additional counted children in accordance with § 10(1) sentences 1 and 2 of the Federal Child Benefit Act, but also by the income of the claimant in accordance with § 10(2) and (3) of the Federal Child Benefit Act. Accordingly, child benefit was gradually reduced to base amounts for the second and each subsequent child if the annual income of the claimant exceeded certain allowances. As a rule, a lower income hence led to a higher child benefit. A determination of the entitled party was hence also able to lead to a larger amount of child benefit because of these income limits. Since the incomes of married co-habiting spouses were added together in assessing the allowances, this possibility was uninteresting for them, whilst with other parents the determination of the parent with the lower income, or who had no income, as the entitled party could increase the child benefit claim.

This conceivable advantage for unmarried parents was however already compensated for by the considerably higher allowances for married persons. Furthermore, the Act determined the entitled parent to be the party with custody, and as a rule this means the mother, who in reality typically also has the lower income, in particular when there are several children – and only with several children were the income limits of § 10(2) and (3) of the Federal Child Benefit Act significant. In contradistinction to the determination of the entitled party because of the advantage acquired through additional counted children, the determination because of different income hence hardly took on significance in practice and also played no role as an argument in the legislative procedure. From a point of view of equality, it is certainly not possible for a rather more rare and atypical advantage for one group to compensate for the group’s being placed at a disadvantage in a very much more frequent and typical constellation.

II.

Since the legislature has a variety of possibilities to eliminate the unconstitutional state in the case of violations of the principle of equality, the provision submitted for review is to be declared incompatible with the Basic Law. The original proceedings remain suspended until the legislature has replaced the unconstitutional provision by a provision that is compatible with the constitution (see BVerfGE 28, 324 (363)). In the event of the legislature not having created a new provision by 1 January 2004, the law as applicable until 31 December 1993 is to be applied to as yet uncompleted sets of proceedings.