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“In-state-residents” (Landeskinder) provision in the Former Bremen Act on Study Accounts unconstitutional

Press Release No. 39/2013 of 28 May 2013

Order of 08 May 2013
1 BvL 1/08

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.