Order of 23 September 2024

R e a s o n s:

A.

1

The referral from the Federal Administrative Court (Bundesverwaltungsgericht) concerns the general rate of assistance under § 13(1) no. 2 of the Federal Training Assistance Act (Bundesausbildungsförderungsgesetz – BAföG) in the version published on 7 December 2010 (Federal Law Gazette, Bundesgesetzblatt – BGBl I p. 1952) and, in respect of the time period relevant here, last amended by Art. 5 of the Act of 29 August 2013 (BGBl I p. 3484, 3488) and the Twenty-fifth Act Amending the Federal Training Assistance Act of 23 December 2014 (BGBl I p. 2475). For the time period relevant here, i.e. October 2014 to February 2015, the provision at issue fixed the monthly financial need at EUR 373 for university students, among others.

I.

2

1. The Federal Training Assistance Act was adopted in 1971 and, for the first time, introduced a legal entitlement to receive assistance for university education, training at higher technical colleges, academies and certain schools. The objective of providing federal training assistance (informally known as ‘BAföG’) was, and still is, to provide individuals with equal opportunities in professional life and to leverage the societal potential of education in the interest of the common good (Bundestag document, Bundestagsdrucksache – BTDrucks VI/1975, p. 19). The forerunner of the Federal Training Assistance Act was the so-called ‘Honnef Model’, which was introduced in the winter term of 1957/58 and which provided assistance to students who had a strong record of achievement and were enrolled at universities or comparable higher education institutions.

3

For the relevant time period, the legislator, by way of the Federal Training Assistance Act, specified the entitlement to individual training assistance, granted under ordinary law, as follows: Students are entitled to receive assistance in order to pursue a type of training (i.e. higher education or vocational training) that reflects their preferences, abilities and achievements if they themselves do not have the necessary means available to cover their living and study costs (§ 1 Federal Training Assistance Act). The specific level of financial assistance that these students receive is calculated based on the rate of general assistance under § 13(1) of the Federal Training Assistance Act, a housing allowance under § 13(2) of the Federal Training Assistance Act (both paragraphs in the version of 7 December 2010, BGBl I p. 1952; hereinafter: f.v.), a supplement for health and long-term care insurance under § 13a of the Federal Training Assistance Act (f.v.) as well as additional benefits for students with children under § 14b of the Federal Training Assistance Act (f.v.). The sum of these components is offset against the student’s income and assets, as well as their parental and spousal income (§ 11(2) Federal Training Assistance Act (f.v.)). If these amounts are below certain thresholds, they do not reduce the level of financial assistance granted. At the time relevant here, the student income threshold was EUR 255 (§ 23(1) first sentence no. 1 Federal Training Assistance Act (f.v.)); currently, the threshold is EUR 353. Pursuant to § 17(2) first sentence of the Federal Training Assistance Act (f.v.), half of the monthly BAföG rate is paid as a grant, the other half as a loan of which a maximum of EUR 10,000 is repayable. An interest is only payable on the loan if repayment is delayed (§ 18(2) Federal Training Assistance Act (f.v.)).

4

Additionally, there generally is an entitlement to receive child benefit for children up to the age of 25 who are in training, thus including those in higher education. While receiving child benefit, in principle, is a parental entitlement, this benefit may be paid directly to the child in case the parents do not fulfil their maintenance obligation (§ 74 Income Tax Code, Einkommensteuergesetz – EStG). Child benefit is not taken into account when calculating parental or student income (cf. § 21(1) first sentence Federal Training Assistance Act (f.v.) in conjunction with § 2(1) and (2) Income Tax Code).

5

Students who may, in principle, be entitled to BAföG cannot receive basic welfare benefits pursuant to § 7(5) of the Second Book of the Code of Social Law (Zweites Buch Sozialgesetzbuch – SGB II) in the here applicable version of 20 December 2011 (BGBl I p. 2854.; Second Book of the Code of Social Law (f.v.)). Pursuant to § 27(3) first sentence of the Second Book of the Code of Social Law (f.v.), students may, however, have a claim to receive a grant for accommodation costs, and pursuant to § 27(4) of the Second Book of the Code of Social Law (f.v.), there are specific needs for which students may also claim basic welfare benefits in form of a loan if they would otherwise be in considerable hardship. Under § 22(1) first and second sentence of the Twelfth Book of the Code of Social Law in the version of 20 December 2011 (Zwölftes Buch Sozialgesetzbuch– SGB XII (f.v.)), this also applies for benefits under the Third Chapter (maintenance benefits) and under the Fourth Chapter (basic welfare for the elderly and persons with a reduced working capacity) of the Twelfth Book of the Code of Social Law. Moreover, under § 20(2) first sentence of the Housing Benefit Act in the version of 20 December 2011 (Wohngeldgesetz – WoGG (f.v.)) no entitlement to a housing benefit is granted in case all household members are, in principle, entitled to benefits under the Federal Training Assistance Act.

6

In total, approximately one sixth to one fifth of all students receive benefits under the Federal Training Assistance Act. According to the Federal Statistical Office (Statistisches Bundesamt), the number of students receiving BAföG declined by 23% between 1991 and 2021 despite a significant rise in student numbers. Nevertheless, the expenditures for training assistance went up, especially because an increasing number of students who receive assistance are entitled to the maximum rate. On average, the Euro converted amount of benefits granted per month was EUR 273 in 1991 and EUR 611 in 2022.

7

2. The training assistance provided by the state is not limited to school and university education. Under §§ 56 ff. of the Third Book of the Code of Social Law (Drittes Buch Sozialgesetzbuch – SGB III), training assistance is also provided for state-approved vocational training if trainees do not live in their parental home and either reaching the place of training from the parental home within a reasonable amount of time is not possible or the trainee is over the age of 18. Furthermore, the Advanced Learner Assistance Act (Aufstiegsfortbildungsförderungsgesetz – AFBG), also referred to as ‘master craftsperson BAföG’, includes provisions on financial assistance for participating in professional development courses. These provisions mirror the prerequisites for and the extent of benefits granted under the Federal Training Assistance Act. In 2021, approximately 192,000 persons received benefits under the Advanced Learner Assistance Act and 74,000 persons received benefits for vocational training – together these two groups make up one fifth of all trainees.

II.

8

1. After graduating with a Bachelor of Science, the plaintiff in the initial proceedings (hereinafter: the plaintiff) commenced a Master’s degree in October 2014 at a public university, the respondent in the initial proceedings (hereinafter: the respondent). The plaintiff was not living with her parents at the time. In view of her parents’ income, she was granted a monthly BAföG rate of EUR 176 from October to December 2014 and EUR 249 in January and February of 2015. For the time period between March and September 2015, the respondent denied the plaintiff’s BAföG application on grounds of her parental income.

9

In the initial proceedings, the plaintiff seeks to be granted a higher BAföG rate than the rate provided for by law from October 2014 until February 2015. The plaintiff contends that the general rate of assistance – which § 13(1) no. 2 of the Federal Training Assistance Act, at that time, fixed at EUR 373 – was too low to be constitutional. According to the plaintiff, the statutory rate of assistance was significantly below the standard rate needed for an existential minimum under Art. 1(1) of the Basic Law in conjunction with the principle of the social state.

10

2. The Administrative Court rejected the plaintiff’s lawsuit; the Higher Administrative Court rejected her appeal on points of fact and law. The Federal Administrative Court stayed the proceedings and, by way of referral, asked the Federal Constitutional Court whether the rate of general assistance under § 13(1) no. 2 of the Federal Training Assistance Act in force during the period in question was compatible with the Basic Law.

11

According to the Federal Administrative Court, the question as to whether the general rate of assistance was valid is decisive for the initial proceedings. [...]

12-16

[…]

III.

17

1. The Federal Government and the plaintiff in the initial proceedings have submitted statements on the referral from the Federal Administrative Court.

18-19

[…]

20

2. In response to the reporting Justice’s request for information, answers to the circulated questions were provided by the Federal Government, the Senate Department of the Land Berlin for Higher Education and Research, Health, Long-Term Care and Gender Equality, the State Chancelleries of Hesse, Lower Saxony and Saxony-Anhalt as well as by the following expert third parties: the German Trade Union Association (Deutscher Gewerkschaftsbund), the German National Association for Student Affairs (Deutsches Studierendenwerk), the German Centre for Higher Education Research and Science Studies (Deutsche Zentrum für Hochschul- und Wissenschaftsforschung), the German Rectors’ Conference (Hochschulrektorenkonferenz) and the KfW Banking Group (Kreditanstalt für Wiederaufbau). The circulated questions concerned the students’ financial situation, the relevance of training assistance in enabling access to the state’s higher education offer and the way in which the general rate of assistance is determined under the Federal Training Assistance Act.

21-24

[…]

B.

25

While the referral from the Federal Administrative Court must be narrowed down (see (I) below), it is admissible (see (II) below).

I.

26

The referred question must be limited to the part of the challenged provision that is relevant to the decision in the initial proceedings (cf. BVerfGE 69, 373 <377>; 85, 176 <182 f.>; 108, 186 <210 f.>).

27

[…]

II.

28

The referral is admissible.

29-33

[In particular, the referred question is relevant to the decision in the initial proceedings.] [...]

C.

34

Based on all relevant constitutional standards (cf. BVerfGE 133, 1 <12 para. 41>; 153, 358 <376 para. 39>; established case-law), the rate of general assistance granted to university students under § 13(1) no. 2 of the Federal Training Assistance Act (f.v.) at the time in question was compatible with the Basic Law.

I.

35

The challenged provision under § 13(1) no. 2 of the Federal Training Assistance Act (f.v.) is formally compatible with the Constitution. Pursuant to Art. 74(1) no. 13 of the Basic Law, the Federation has the concurrent legislative competence for regulating training assistance. [...]

II.

36

The general rate of assistance afforded to university students under § 13(1) no. 2 of the Federal Training Assistance Act (f.v.) does not violate the right to the guarantee of an existential minimum in accordance with human dignity under Art. 1(1) of the Basic Law in conjunction with the social state principle. This right is not geared towards providing individuals with benefits to cover their study and living costs in order to enable them to study at university if they have the qualifications but not the financial means to do so.

37

1. It falls to the legislator to specify the entitlement to receive basic welfare benefits under Art. 1(1) of the Basic Law in conjunction with the social state principle (Art. 20(1) of the Basic Law); this entitlement ensures an existence in accordance with human dignity for those people who are not able to cover their basic living costs by themselves (cf. BVerfGE 125, 175 <222>; 132, 134 <159 para. 63>). The entitlement to receive such benefits is limited to the strictly necessary amount (cf. BVerfGE 125, 175 <223>; 163, 254 <277 para. 53>) and is subject to the principle of last resort, i.e. only applies if self-help is not available. Not only may the legislator give effect to the principle of last resort by requiring that, before claiming benefits, individuals first use the financial means available to them through their income, assets or financial assistance by others (cf. BVerfGE 152, 68 <116 f. para. 126>; 163, 254 <281 para. 61>). Rather, in assessing a person’s need for assistance, it is, generally, possible to also take into account the income and assets of persons from whom mutual support to counter the vicissitudes of life can be expected because of a close personal relationship and thus a reciprocal sense of duty (cf. BVerfGE 163, 254 <281 para. 61>). Additionally, the Basic Law also does not bar the legislator from requiring that recipients of state benefits actively participate in improving their situation so as to no longer be reliant on state benefits or to avoid requiring them in the first place (cf. BVerfGE 152, 68 <116 f. para. 126>; 163, 254 <281 para. 62>). On this basis, the legislator is generally permitted to make the provision of basic welfare benefits contingent on an obligation to take all suitable, necessary and reasonable opportunities that are available to no longer be reliant on state benefits or to not require them in the first place (cf. BVerfGE 163, 254 <288 para. 75> with further references).

38

The right to the guarantee of an existence in accordance with human dignity under Art. 1(1) of the Basic Law in conjunction with the social state principle is limited to those financial means which are strictly necessary to guarantee a human being’s physical existence as well as the possibility of cultivating interpersonal relationships and a minimum degree of participation in social, cultural and political life (cf. BVerfGE 125, 175 <223>). This right can thus not serve as a basis for claiming further benefits to allow exercising freedoms that are guaranteed by a specific fundamental right. At most, a right to receive such benefits may only be claimed in very specific constellations and only on the basis of precisely this fundamental right.

39

2. On this basis, Art. 1(1) of the Basic Law in conjunction with the social state principle does not afford individuals a right to basic welfare benefits in order to study at university if they are qualified to do so but lack the necessary financial means. An individual’s human dignity is not infringed if they cannot pursue higher education due to a lack of financial means and instead need to take up vocational training or employment in order to provide for their essential living costs. If an individual who is qualified to study at university but lacks the necessary financial means is factually and legally unable to take up an employment securing their existence or to end this situation of need in some other way, this individual, like all other individuals who are unable to secure their existence, is entitled to receive benefits that are indispensable to maintain an existence in accordance with human dignity. In such a case, however, these benefits are not intended to enable the recipient to take up or continue a desired higher education course but only to help them overcome the situation of emergency jeopardising their existence. Accordingly, the constitutional entitlement to a guaranteed existential minimum expires as soon as there is an actual possibility of self-help, regardless of whether the consequence is that higher education cannot be pursued.

III.

40

While individuals who are qualified for higher education have a right to equal participation in the state’s higher education offer pursuant to Art. 12(1) first sentence of the Basic Law in conjunction with Art. 3(1) of the Basic Law, this right does not encompass an entitlement to being provided with the necessary material prerequisites.

41

In terms of purpose, the right to equal participation in the state’s higher education offer serves to ensure an equal distribution of the training capacities which the state has already made available; it does not serve to grant individuals additional benefits to enable them to study at university (cf. BVerfGE 147, 253 <306 f. paras. 105 f.>; left open in BVerfGE 33, 303 <333> on the question of whether the right to equal participation gives rise to an obligation for the state to further expand its higher education offer in case of capacity limitations). Individuals who are qualified for higher education may object to being legally excluded from equally participating in the state’s higher education offer due to selection procedures that are not based on aptitude (cf. BVerfGE 33, 303 <331 ff.>; 147, 253 <305 ff. paras. 103 ff.>) or despite existing capacities (cf. BVerfGE 33, 303 <338 ff.>; 85, 36 <56 f.>). They may also object to the existing higher education offer being designed in a manner that is not sufficiently compatible with social justice requirements and that de facto sets up disproportionate obstacles to equal access for individuals who do not have the necessary financial means, e.g. by putting in place tuition fees that have a prohibitive effect (cf. BVerfGE 134, 1 <14 ff. paras. 40 ff.>). This, however, does not mean that there is an original entitlement to receive benefits removing societal obstacles to higher education access. The right to equal access to the state’s higher education offer is a derivative right to participation. As such, it always refers to the existing higher education offer and only comes into play when state measures impede equal participation in making use of this offer.

IV.

42

The social state principle under Art. 20(1) of the Basic Law also does not give rise to a right to receive benefits that would enable individuals without financial means to study at university and thereby exercise their fundamental right to freely choose their place of training under Art. 12(1) of the Basic Law.

43

While Art. 20(1) of the Basic Law mandates the state to provide for a just social order, the principles of democracy and the separation of powers (Art. 20(2) and (3) of the Basic Law) afford the legislator broad leeway to design when it comes to settling on an order of priorities between the numerous social needs that compete with each other due to the limited financial means available to the state, and when it comes to distributing any state benefits affecting public finances in accordance with this prioritisation which must also give due regard to the realisation of the other state tasks (cf. BVerfGE 59, 231 <263>; 100, 271 <284>). Apart from a right to an existential minimum in accordance with human dignity under Art. 1(1) of the Basic Law in conjunction with the social state principle, this generally excludes constitutional entitlements to state benefits removing inequalities that stand in the way of equal opportunities to realise fundamental freedoms (see (1) below) (cf. already BVerfGE 82, 60 <79 f.>; [...]). Granting state benefits to allow individuals to access higher education if they are qualified to study at university but lack the financial means to do so, does not give rise to an exception from this rule (see (2) below).

44

1. In principle, the legislator’s broad leeway to design when implementing the social state mandate under Art. 20(1) of the Basic Law precludes original rights to receive benefits that would enable the exercise of fundamental freedoms – rights that would be binding under Art. 1(3) of the Basic Law.

45

a) aa) The state’s mandate to ensure a just social order – a mandate that follows from Art. 20(1) of the Basic Law – is far reaching. This mandate, for instance, encompasses caring for and protecting individuals who are in need or disadvantaged in society (cf. BVerfGE 100, 271 <284>), providing care and support to children and young people (cf. BVerfGE 22, 180 <204>; 97, 332 <347 f.>), providing social security against the vicissitudes of life (cf. BVerfGE 28, 324 <348>; 45, 376 <387>; 68, 193 <209>; 103, 197 <221>), equalising burdens to be shouldered by society as a whole and not just by certain individuals or groups (cf. BVerfGE 102, 254 <298>), promoting employment (cf. BVerfGE 100, 271 <284>; 103, 293 <306 f.>) and equal opportunities in education and training (cf. BVerfGE 33, 303 <331 f.>; 112, 226 <245>).

46

bb) Under the social state principle (Art. 20(1) of the Basic Law), the state has the general mandate to, for instance through public benefits, counter societal obstacles that impede exercising fundamental freedoms (cf. BVerfGE 97, 332 <347>; 100, 271 <284>). The general mandate to enable the exercise of fundamental freedoms in constitutional practice extends to the entire order of fundamental values.

47

Given that freedom in training and occupation under Art. 12(1) of the Basic Law and the social state principle under Art. 20(1) of the Basic Law have a joint effect, this general mandate translates into a specific mandate for the state to provide for equal opportunities in education and training (cf. already BVerfGE 112, 226 <245>; 134, 1 <14 para. 40>). This mandate to promote equal opportunities reflects the exceptional significance of the state’s task – enshrined in the social state principle and the mentioned fundamental rights – to remove social obstacles in the way of unimpededly fulfilling one’s potential. This involves removing obstacles by balancing social inequalities in order to provide equal opportunities of achievement-based access to training and employment. A factually guaranteed permeability in education and training serves to implement high-ranking fundamental values that are enshrined in Art. 12(1) of the Basic Law; this is because pursuing a type of training and profession that, as far as possible, is in line with personal ability and inclination is a key to being able to live an independent life (cf. BVerfGE 43, 291 <314 f.>). At the same time, it is also an essential interest of the common good to promote a just distribution of life opportunities – one that is not based on social background but on individual abilities. Fulfilling the promise of the social state principle of ‘education being the key to social mobility’ can strengthen societal cohesion. Moreover, leveraging the existing potential in education and training also promotes Germany as a place of business and research (cf. BTDrucks VI/1975, p. 19 on promoting higher education).

48

The mandate to safeguard equal opportunities in education and training encompasses all measures that, at life’s different stages, may contribute to improving equal opportunities in terms of achievement-based access to training and employment. This includes all measures that remove obstacles arising, among others, from individual social backgrounds, a lack of financial means or due to family obligations to care for children and people in need. This not only includes promoting higher education but also vocational training and early childhood education (cf. BVerfG, Judgment of the First Senate of 22 November 2023 – 1 BvR 2577/15 inter alia -, paras. 77 ff. – Remarks in school-leaving certificates – on the importance of school-leaving certificates for equal opportunities to ensure achievement-based access to training and employment).

49

b) Given that the state has limited financial means at its disposal, the comprehensive and diverse tasks that the social state principle imposes on the state cannot all be optimally fulfilled at the same time. It is therefore necessary to prioritise certain tasks over others. Under the democracy principle and the principle of the separation of powers, this prioritisation falls to the democratically legitimated legislator.

50

aa) The financial means that are at the state’s disposal to fulfil these tasks are necessarily limited. An indefinite increase in state revenues to optimally fulfil all tasks incumbent on the state is precluded by the limitations on borrowing set out in Art. 109(3) and Art. 115(2) of the Basic Law and the necessity to preserve the taxpayer’s willingness and ability to pay – also considering that when imposing payment obligations on the taxpayer, this warrants a justification in terms of defensive rights of the citizen against the state. This also applies for the state’s task at issue here, namely to provide for a just social order pursuant to the social state principle under Art. 20(1) of the Basic Law (cf. BVerfGE 100, 271 <284>). Under the Basic Law, fulfilling this task does not take precedence over other tasks that fall to the state. In practice, limitations in this respect also follow from the necessity to preserve the taxpayers’ willingness to act in solidarity with socially disadvantaged individuals. This solidarity is indispensable for realising a fair and just social order (on safeguarding solidarity in the field of social insurance, cf. BVerfGE 48, 346 <358> and 66, 66 <76>; cf. also BVerfGE 152, 68 <116 para. 124> and 163, 254 <280 f. para. 60> on the necessity to only grant basic welfare benefits in cases of actual need).

51

bb) The fact that the available funds are limited requires prioritising the fulfilment of certain state tasks over others based on their type, timing and extent as well as the current conditions in society and the economy. This also applies in terms of the tasks imposed by the social state principle, given their extensive financial implications. Determining by way of public debate which aspects are to be prioritised – a necessary step to solve the distribution conflicts – and adapting this prioritisation to the evolving needs of society is a core element of the political leeway afforded to the parliament elected by the people (cf. BVerfGE 79, 311 <329>; 130, 318 <343 f.>). In view of the principle of the separation of powers, parliament is also best positioned in terms of functional organisation (cf. BVerfGE 159, 223 <286 f. para. 140>) to achieve appropriate results in cooperation with the government – especially when considering the substantial extent and diversity of tasks such as those imposed by the social state principle (see above paras. 45 ff.).

52

c) Given their regular and considerable effect on public finances, rights to state benefits that serve to remove social inequalities which stand in the way of equal opportunities in realising fundamental freedoms would interfere with the democratically legitimated legislator’s competence to decide on how to use the limited financial funds at its disposal. Such subjective rights would oblige the legislator to create and design a corresponding basis for such entitlements under ordinary law and would be binding on the executive and the judiciary when applying the legal framework thus introduced (Art. 1(3) of the Basic Law). In the long run, the funds necessary to fulfil such fundamental rights could no longer be used to fulfil other objectives in the interest of the common good in accordance with an overarching prioritisation of the state’s tasks based on current conditions in society and the economy. This would be the case regardless of whether needs and urgencies evolve due to changes in societal and economic conditions. Consequently, it is only in exceptional cases that an entitlement to state benefits may be derived from the interdependent effect of the state’s mandate under the social state principle and the order of fundamental values under the Basic Law. Only special constellations in which granting an entitlement to state benefits is absolutely indispensable for the realisation of fundamental freedoms may qualify as exceptional cases.

53

2. The case at hand is not an exceptional case. When compared to other social needs and state tasks, making higher education possible for individuals who have the qualifications but not the financial means cannot be considered indispensable to such an extent as to recognise a corresponding fundamental right to receive state benefits and thereby permanently preclude the democratically legitimated legislator from making a different use of the financial means necessary to fulfil such a right, regardless of society’s evolving needs. Making higher education possible for individuals who have the qualifications but not the financial means is but one element among many that are part of the social state mandate to provide for permeability in the educational system; promoting early childhood education, for instance, is another such element.

54

a) However, welfare benefits that enable individuals to partake in the state’s higher education offer if they have the qualifications but not the financial means are of paramount importance for ensuring equal opportunities in realising the freedom of training and occupation under Art. 12(1) of the Basic Law. If no training assistance were provided to individuals who are qualified for higher education but lack the financial means to cover their living and study costs, these individuals would regularly be barred not only from their preferred path of training but also from entering the occupation of their choice – be it due to professional regulations which make entering a certain profession contingent on successfully completing a certain course of study, be it due to a lower likelihood of successfully applying for a job without a university degree. Distributing life opportunities in such a way that they depend on individuals’ financial circumstances conflicts with the decisions on values enshrined in the Basic Law regarding the freedom of training and education, equality and the social state principle. Additionally, not providing training assistance and thereby not fulfilling the requirement of aptitude-based selection (cf. BVerfGE 147, 253 <308 ff. paras. 108 ff.>) would mean that access to a degree course with a limited capacity would factually not be possible for individuals who lack the financial means, even if, compared to others who have the means, they are better qualified both for the degree course and the profession it leads to.

55

b) While of great importance, it does not follow, that – compared to the relevance and urgency of the state’s other tasks under the social state principle (paras. 45 and 48) – enabling individuals to study at university, if they have the qualifications but not the financial means, is of such weight as to be permanently indispensable, regardless of society’s evolving needs.

56

This is not altered by the fact that removing social barriers to higher education access is part of the state’s specific mandate to promote equal opportunities in education and training (paras. 47 f.). A special indispensability to make access to higher education possible is also not discernible when comparing this task to other social needs which also fall under the state’s mandate to promote equal opportunities in education and training. In terms of access to non-academic training and employment too, an equitable distribution of life opportunities is contingent on equal opportunities being guaranteed and access not depending on individual finances but solely on individual abilities. Moreover, equal opportunities in accessing education, training and employment may not only be obstructed by financial circumstances, as is the case for individuals who have the qualifications but not the financial means to study at university. Rather, equal opportunities may, for example, also be hindered by a lack of childcare offers or by facilities designed in a manner that makes them inaccessible to people with disabilities. State benefits to counter these obstacles improve the actual opportunities to study at university, as do financial benefits that allow individuals to cover their study and living costs if they have the qualifications but not the financial means to study at university. These opportunities also improve if the state provides and further develops a higher education offer that is free of charge. Life opportunities can be curtailed at an early stage in a myriad of ways, for example if there is a lack of early childhood education or support for children and young people from socially disadvantaged families, i.e. support that could pave the way to a type of training and employment that is in line with individual talents and abilities.

57

In view of the limited state funds available, all these social needs compete with each other, and the legislator must thus retain its authorisation to prioritise according to socio-political considerations, regardless of the special importance that the mandate to promote equal opportunities in education and training has.

58

c) The fact that the state’s higher education offer makes the state itself a training provider does not give rise to a special constellation that would make it indispensable to eliminate all social obstacles that could stand in the way of studying at a public university. It is true that the state has a specific obligation to realise fundamental values when it itself maintains facilities that realise fundamental freedom. This applies even more so if fundamental freedom can only be exercised by accessing such a facility, as is the case for the right to freely choose one’s place of training under Art. 12(1) of the Basic Law (cf. BVerfGE 33,303 <331>). Against this backdrop, the state must not create legal or social obstacles that would make equal participation in its higher education offer disproportionately more difficult (cf. BVerfGE 33, 303 <331 f.>; 134, 1 <15 para. 42>; see in this respect already para. 41). However, the fact that the state maintains facilities where fundamental freedoms may be exercised cannot, on its own, give rise to an original right to state benefits removing social obstacles to participation in this state offer. Constitutional case-law has only found there to be such a right when a fundamental freedom may, for legal reasons, exclusively be exercised in a public facility; a case in point is the requirement for legal protection to only be sought before state courts – a requirement which follows from the state’s monopoly on establishing and enforcing the law, which, in turn, follows from the rule of law. In this respect, individuals who are in financial need have a right to receive state benefits that serve to provide equality in legal protection – a right arising from Art. 3(1) of the Basic Law in conjunction with Art. 20(3) of the Basic Law (cf. BVerfGE 81, 347 <356 f.>). Clearly, the present is not such a case.

59

3. § 13(1) no. 2 of the Federal Training Assistance Act in the version in force at the relevant time does also not violate the state’s objective legal mandate to safeguard equal opportunities in training and education, which follows from Art. 12(1) of the Basic Law and the social state principle (paras. 47 f.).

60

While the legislator generally has considerable leeway in shaping the social state (paras. 44 ff.), this leeway would be exceeded here if entire population groups were factually excluded from accessing certain types of training and employment from the outset due to measures that evidently fall short of promoting both social permeability and an equitable distribution of life opportunities in education and training. Under such circumstances, the mandate to promote equal opportunities in education and training would impose on the state an objective legal duty to act, and the state would be afforded a margin of appreciation, assessment and manoeuvre in fulfilling this duty (cf. BVerfGE 158, 170 <191 para. 49>; 159, 355 <441 para. 205> with further references). This is not the case here. Given that the state does not completely neglect promoting the social permeability and equitable distribution of higher education opportunities, it is not the case that a substantial part of the population has no access to higher education from the outset. Indeed, it is precisely in this field of training that the state promotes social permeability. The state does so not only by providing federal training assistance to individuals who have the qualifications but not the financial means to study at university, but also by investing significant public funds to itself create a higher education offer that is compatible with social justice requirements (cf. BVerfGE 134, 1 <14 ff. paras. 40 ff.>). Proof for the state’s active role in this respect can also be found in the fact that a high percentage of all students are BAföG recipients. One sixth to one fifth of all students receive BAföG (para. 6). According to the Federal Government and the statements submitted by the expert third parties, 80% of all recipients state that, without BAföG, they would be unable to study at university. Additionally, there is a large number of students who would not be able to study at university if the state had not designed its higher education offer in a manner that is compatible with social justice requirements by investing significant amounts of public funds.