Headnotes

of the judgment of the First Senate of 9 February 2010

– 1 BvL 1/09 –

– 1 BvL 3/09 –

– 1 BvL 4/09 –

1. The fundamental right to the guarantee of a subsistence minimum that is in line with human dignity from Article 1.1 of the Basic Law (Grundgesetz – GG) in conjunction with the principle of the social welfare state contained in Article 20.1 of the Basic Law ensures to each person in need of assistance the material prerequisites which are indispensable for his or her physical existence and for a minimum of participation in social, cultural and political life.
2. As a guarantee right, this fundamental right from Article 1.1 of the Basic Law takes on autonomous significance, in its conjunction with Article 20.1 of the Basic Law, in addition to the right from Article 1.1 of the Basic Law to respect for the dignity of each individual, which has an absolute effect. Fundamentally, it is not subject to the legislature’s disposal and must be honoured; it must however be lent concrete shape, and be regularly updated, by the legislature, which has to orientate the benefits to be paid towards the respective stage of development of the polity and towards the existing conditions of life. It has latitude in bringing about this state of affairs.
3. In order to ascertain the extent of the claim, the legislature has to realistically and comprehensively assess all expenditure that is necessary for one’s existence in a transparent, expedient procedure on the basis of reliable figures and plausible methods of calculation.
4. The legislature may cover the typical needs to ensure a subsistence minimum that is in line with human dignity by means of a fixed monthly amount, but must grant an additional benefit for securing a special need beyond this which is irrefutable, recurrent and not merely a single instance.

IN THE NAME OF THE PEOPLE

In the proceedings
on the constitutional review

– suspension of proceedings and submission order of the Higher Social Court of Hesse (Hessisches Landessozialgericht ) of 29 October 2008 – L 6 AS 336/07 –

– 1 BvL 1/09 –,

– suspension of proceedings and submission order of the Federal Social Court (Bundessozialgericht ) of 27 January 2009 – B 14 AS 5/08 R –

– 1 BvL 3/09 –,

– suspension of proceedings and submission order of the Federal Social Court of 27 January 2009 – B 14/11b AS 9/07 R –

– 1 BvL 4/09 –

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

Papier (President),
Hohmann-Dennhardt,
Bryde,
Gaier,
Eichberger,
Schluckebier,
Kirchhof,
Masing

on the basis of the oral hearing of 20 October 2009 by

Judgment

hereby rules:

1. § 20.2 1st clause and § 20.3 sentence 1, § 28.1 sentence 3 no. 1 1st alternative, in each case in conjunction with § 20.1 of the Second Book of the Code of Social Law in the version of the Fourth Act for Modern Services on the Labour Market of 24 December 2003 (Federal Law Gazette I page 2954), § 20.2 sentence 1 and § 20.3 of the Second Book of the Code of Social Law in the version of the Act Amending the Second Book of the Code of Social Law and other Statutes (Gesetz zur Änderung des Zweiten Buches Sozialgesetzbuch und anderer Gesetze) of 24 March 2006 (Federal Law Gazette I page 558), § 28.1 sentence 3 no. 1 1st alternative in conjunction with § 74 of the Second Book of the Code of Social Law in the version of the Act to Ensure Employment and Stability in Germany (Gesetz zur Sicherung von Beschäftigung und Stabilität in Deutschland) of 2 March 2009 (Federal Law Gazette I page 416), in each case in conjunction with § 20.1 of the Second Book of the Code of Social Law in the version of the Act on Development of the Basic Provision for Job-Seekers (Gesetz zur Fortentwicklung der Grundsicherung für Arbeitsuchende) of 20 July 2006 (Federal Law Gazette I page 1706), as well as the announcements of the amount of the standard benefit according to § 20.2 and § 20.2 sentence 1 of the Second Book of the Code of Social Law of 1 September 2005 (Federal Law Gazette I page 2718), of 20 July 2006 (Federal Law Gazette I page 1702), of 18 June 2007 (Federal Law Gazette I page 1139), of 26 June 2008 (Federal Law Gazette I page 1102) and of 17 June 2009 (Federal Law Gazette I page 1342) are incompatible with Article 1.1 of the Basic Law in conjunction with the principle of the social welfare state contained in Article 20.1 of the Basic Law.
2. These provisions shall remain applicable until the legislature enacts new provisions, which it is ordered to do by 31 December 2010 at the latest.
3. The legislature is ordered to make provision, when enacting the new provisions, for securing an irrefutable recurrent special need which is not merely a single instance for those eligible for benefits according to § 7 of the Second Book of the Code of Social Law, a need which has not yet been covered by the benefits pursuant to §§ 20 et seq. of the Second Book of the Code of Social Law but must mandatorily be covered to guarantee a subsistence minimum that is in line with human dignity. It is ordered that until the legislature enacts new provisions, this claim can be asserted directly, taking into account the grounds of the decision, on the basis of Article 1.1 of the Basic Law in conjunction with Article 20.1 of the Basic Law, with the costs being borne by the Federation.

Reasons:

A.

The proceedings on the concrete review of the constitutionality of a statute, which have been consolidated for joint adjudication, relate to the question of whether the amount of the standard benefit paid to secure the livelihood of adults and children until completing the age of 14 in the period from 1 January 2005 to 30 June 2005 according to § 20.1 to § 20.3 and according to § 28.1 sentence 3 no. 1 of the Second Book of the Code of Social Law in the version of Article 1 of the Fourth Act for Modern Services on the Labour Market of 24 December 2003 (Federal Law Gazette I p. 2954) is compatible with the Basic Law.

I.

Until 31 December 2004 there were two different systems of means-tested social benefits for employable persons to secure one’s livelihood in the shape of unemployment assistance according to §§ 190 et seq. of the Third Book of the Code of Social Law – Employment Promotion – old version, on the one hand, and of social assistance according to the Federal Social Assistance Act (Bundessozialhilfegesetz – BSHG), on the other. These two systems were combined by the Fourth Act for Modern Services on the Labour Market of 24 December 2003 (Federal Law Gazette I p. 2954; so-called “Hartz IV Act”) in the newly created Second Book of the Code of Social Law – Basic Provision for Job-seekers – by effect as per 1 January 2005 in the shape of uniform, means-tested basic provision for employable persons and persons living with them in a joint household. The Federal Social Assistance Act was also rescinded by effect as per 1 January 2005 by the Act Integrating Social Assistance Law into the Social Code (Gesetz zur Einordnung des Sozialhilferechts in das Sozialgesetzbuch ) of 27 December 2003 (Federal Law Gazette I p. 3022) (Article 68.1 no. 1 of the Act), and social assistance law was reformed in the Twelfth Book of the Code of Social Law – Social Assistance as means-tested basic provision for those persons who are not eligible for benefits according to the Second Book of the Code of Social Law. Unemployment assistance was completely deleted from the list of employment promotion benefits from 1 January 2005 onwards by Article 3 no. 14 and no. 15 of the Fourth Act for Modern Services on the Labour Market.

1. According to the Second Book of the Code of Social Law, those eligible for benefits are first and foremost employable persons in need of assistance within the meaning of the legal definition contained in § 7.1 sentence 1 of the Second Book of the Code of Social Law, that is, according to the original version of the provision, persons who have completed the age of 15 and who have not yet completed the age of 65, are employable within the meaning of § 8 of the Second Book of the Code of Social Law and in need of assistance within the meaning of § 9 of the Second Book of the Code of Social Law, and are habitually resident in the Federal Republic of Germany. Moreover, according to § 7.2 sentence 1 of the Second Book of the Code of Social Law, those persons are also eligible for benefits who live in a joint household with employable persons in need of assistance. These include inter alia the not permanently separated spouse as the partner of the employable person in need of assistance (§ 7.3 no. 3 (a) of the Second Book of the Code of Social Law) and the minor-age, unmarried children belonging to the household insofar as they are not able to obtain the payments to secure their livelihood from their own income or property (see § 7.3 no. 4 of the Second Book of the Code of Social Law, old version).

The employability of the person in need of assistance and membership of a joint household with him or her are the major delimitating criteria between basic provision for job-seekers according to the Second Book of the Code of Social Law, and social assistance according to the Twelfth Book of the Code of Social Law. According to § 5.2 sentence 1 of the Second Book of the Code of Social Law, the claim to benefits to secure one’s livelihood according to the Second Book of the Code of Social Law rules out livelihood assistance benefits according to the Third Chapter of the Twelfth Book of the Code of Social Law (§§ 27 to 40 of the Twelfth Book of the Code of Social Law). Persons who according to the Second Book of the Code of Social Law are fundamentally eligible for benefits as being employable or as dependants do not receive, according to § 21 sentence 1 of the Twelfth Book of the Code of Social Law, livelihood benefits according to the Twelfth Book of the Code of Social Law. The basic provision in old age and in cases of reduced earning capacity hence remain the main application case of social assistance law according to the Twelfth Book of the Code of Social Law.

2. As benefits to secure their livelihood, if they have completed the age of 15 and are employable within the meaning of § 8.1 of the Second Book of the Code of Social Law, single persons and members of a joint household receive unemployment benefit II within the meaning of § 19 sentence 1 of the Second Book of the Code of Social Law, and otherwise social benefit within the meaning of § 28.1 sentence 1 of the Second Book of the Code of Social Law, if they do not have a claim to benefits for permanently completely reduced earning capacity according to §§ 41 et seq. of the Twelfth Book of the Code of Social Law. Social benefit is received in particular by children before completing the age of 15 for whom a claim according to the provisions of §§ 41 et seq. of the Twelfth Book of the Code of Social Law, which is contingent on having completed the age of 18, is ruled out from the outset.

a) Unemployment benefit II essentially consists of the standard benefit paid to secure one’s livelihood within the meaning of § 20 of the Second Book of the Code of Social Law, benefits for any additional needs according to § 21 of the Second Book of the Code of Social Law and the benefits for housing and heating according to § 22 of the Second Book of the Code of Social Law. According to § 24 of the Second Book of the Code of Social Law, time-limited allowances may be added which are granted within two years after the end of the receipt of unemployment benefit and the amount of which depends on the difference between unemployment benefit and unemployment benefit II. Non-recurrent assistance is now only provided for by the Second Book of the Code of Social Law in exceptional cases, above all in the shape of benefits for initial equipment purchases in the home, including household appliances (§ 23.3 sentence 1 no. 1 of the Second Book of the Code of Social Law), for the initial equipment purchases of clothing, as well as in case of pregnancy and birth (§ 23.3 sentence 1 no. 2 of the Second Book of the Code of Social Law) and for class trips lasting several days (§ 23.3 sentence 1 no. 3 of the Second Book of the Code of Social Law).

The scope and amount of the standard benefit are determined in § 20.1 to § 20.3 of the Second Book of the Code of Social Law. These provisions read as follows in the original version of the Fourth Act for Modern Services on the Labour Market (Second Book of the Code of Social Law, old version), which is relevant here:

§ 20

The standard benefit paid to secure one’s livelihood

(1) The standard benefit paid to secure one’s livelihood shall particularly encompass food, clothing, personal hygiene, household goods, everyday needs, as well as to a justifiable degree also relationships with one’s surroundings and participation in cultural life. This shall not include the benefits according to the Twelfth Book designated in § 5.2 sentence 2 of the present Book.

(2) The monthly standard benefit for persons who are single or single parents or whose partner is a minor shall be Euro 345 in the old Federal Länder (states) including Berlin (East), and Euro 331 in the new Federal Länder .

(3) If two members of the joint household have completed the age of 18, the standard benefit shall be in each case 90 per cent of the standard benefit according to subsection 2. The standard benefit for other employable members of the joint household shall be 80 per cent of the standard benefit according to subsection 2.

(4) ...

As emerges from an overview together with § 20.2 of the Second Book of the Code of Social Law, the standard benefit of 90 % applies here to major-age partners in the joint household within the meaning of § 7.3 of the Second Book of the Code of Social Law, that is inter alia to spouses who are not permanently separated. From 1 January 2005 onwards, it was initially a rounded amount of Euro 311 in the old Länder including Berlin (East). Other employable dependants within the meaning of § 20.3 sentence 2 of the Second Book of the Code of Social Law, old version (today § 20.2 sentence 2 of the Second Book of the Code of Social Law) are minor-age partners and minor-age, unmarried children who have completed the age of 15. The standard benefit for them has been Euro 276 in the old Länder , including Berlin (East), since 1 January 2005.

The standard benefit of Euro 345 according to § 20.2 sentence 1 of the Second Book of the Code of Social Law in the version of the Act Amending the Second Book of the Code of Social Law and other Statutes of 24 March 2006 (Federal Law Gazette I p. 558) has applied nationwide since 1 July 2006. Since then, § 20.3 of the Second Book of the Code of Social Law has only provided for a standard benefit of 90 %. As per 1 August 2006, § 20.1 of the Second Book of the Code of Social Law, sentence 2 of which has already been deleted as per 1 July 2006, has been expanded by the Act on Development of the Basic Provision for Job-Seekers of 20 July 2006 (Federal Law Gazette I p. 1706) to include the aspect “household energy not including the shares accounted for by heating”.

b) According to § 28.1 sentence 2 of the Second Book of the Code of Social Law, social benefit encompasses the benefits of unemployment benefit II. § 28.1 sentence 3 no. 1 of the Second Book of the Code of Social Law in the version of the Fourth Act for Modern Services on the Labour Market hence provides as follows:

§ 28

Social benefit

(1) … The following additional conditions shall apply:

1. The standard benefit shall be 60 per cent of the standard benefit according to § 20.2 until completing the age of 14 and 80 per cent of this standard benefit at the age of 15;

…

From 1 January 2005, hence, children until completing the age of 14 belonging to the joint household in the old Länder including Berlin (East) initially received Euro 207 in social benefit per month, and Euro 276 from the beginning of the age of 15.

c) Receipt of unemployment benefit II in principle leads to an obligation to be insured in statutory pensions, health and long-term care insurance (see § 5.1 no. 2a of the Fifth Book of the Code of Social Law, § 3 sentence 1 no. 3a of the Sixth Book of the Code of Social Law and § 20.1 sentence 2 no. 2a of the Eleventh Book of the Code of Social Law). The contributions to this are paid by the Federation (see § 251.4 of the Fifth Book of the Code of Social Law, § 170.1 no. 1 of the Sixth Book of the Code of Social Law and § 59.1 sentence 1 1st clause of the Eleventh Book of the Code of Social Law). Minor-age children are insured as family members according to § 10 of the Fifth Book of the Code of Social Law and § 25 of the Eleventh Book of the Code of Social Law. If, exceptionally, no mandatory insurance exists, benefits are granted according to § 26 of the Second Book of the Code of Social Law for the voluntary or private contributions to be paid.

3. The adjustment and re-assessment of the standard benefit take place according to § 20.4 of the Second Book of the Code of Social Law. The competent Federal Ministry (currently the Federal Ministry of Labour and Social Affairs) announces in the Federal Law Gazette by 30 June of each calendar year at the latest the amount of the standard benefit applicable for the following twelve months (§ 20.4 sentence 3 of the Second Book of the Code of Social Law).

a) § 20.4 sentence 1 of the Second Book of the Code of Social Law links the adjustment of the standard benefit to the development of the current pension value in statutory pensions insurance. The latter is defined in § 68.1 sentence 1 of the Sixth Book of the Code of Social Law – Statutory Pensions Insurance – as the amount corresponding to a monthly old-age pension of the general pensions insurance if contributions have been paid for a calendar year on the basis of average earnings. It is changed as per 1 July each year by multiplying the previous pension value by the factors for the change in gross wages and salaries per employee (§ 68.1 sentence 3 no. 1 of the Sixth Book of the Code of Social Law) and of the contribution rate to general pensions insurance (§ 68.1 sentence 3 no. 2 of the Sixth Book of the Code of Social Law) – but for the period from 1 July 2005 to 1 July 2013 of the contribution rate to general pensions insurance and the old-age provision factor (§ 255e of the Sixth Book of the Code of Social Law) – and by the sustainability factor (§ 68.1 sentence 3 no. 3 of the Sixth Book of the Code of Social Law).

Because of changes in the current pension value, the standard benefit according to § 20.2 sentence 1 of the Second Book of the Code of Social Law, new version, has been increased three times since the entry into force of the Second Book of the Code of Social Law, that is to Euro 347 as per 1 July 2007 (announcement of 18 June 2007, Federal Law Gazette I p. 1139), to Euro 351 as per 1 July 2008 (announcement of 26 June 2008, Federal Law Gazette I p. 1102) and to Euro 359 as per 1 July 2009 (notice of 17 June 2009, Federal Law Gazette I p. 1342). Major-age partners in joint households hence received Euro 312 from 1 July 2007, Euro 316 from 1 July 2008 and Euro 323 from 1 July 2009; other members of the joint household, from the beginning of the age of 15, received Euro 278 from 1 July 2007, Euro 281 from 1 July 2008 and Euro 287 from 1 July 2009. Social benefit for children until completing the age of 14, amounting to 60 % according to § 28.1 sentence 3 no. 1 of the Second Book of the Code of Social Law, increased to Euro 208 as per 1 July 2007, to Euro 211 as per 1 July 2008 and to Euro 215 as per 1 July 2009 (all amounts rounded). No increase took place as per 1 July 2005 and as per 1 July 2006, by contrast, because the current pension value remained unchanged in each case (announcements of 1 September 2005, Federal Law Gazette I p. 2718, and of 20 July 2006, Federal Law Gazette I p. 1702).

b) The amount of the standard benefit is also reviewed and refined as soon as the results of a new sample survey on income and expenditure are available (§ 20.4 sentence 2 of the Second Book of the Code of Social Law in conjunction with § 28.3 sentence 5 of the Twelfth Book of the Code of Social Law). The sample survey on income and expenditure is carried out by the Federal Statistical Office at five-yearly intervals on the basis of the Act on Statistics of Household Budget Surveys in Private Households (Gesetz über die Statistik der Wirtschaftsrechnungen privater Haushalte – PrHaushStatG). For the survey, roughly 60,000 private households in Germany are asked who are selected inter alia by household type, social status of the main breadwinner and net household income. The households, which take part on a voluntary basis, note in the survey all income and expenditure in a household diary for a period of three months. One participating household in five also completes a detailed record book in which it records all expenditure on foodstuffs, beverages and tobacco goods by volume and prices in detail for one month. Only the results of the sample survey on income and expenditure 1998 were available at the time when the Fourth Act for Modern Services on the Labour Market was adopted, and when it came into force. No increases later arose because of the evaluation of the 2003 sample survey on income and expenditure (cf. on this III.1. below).

4. An individual increase in the standard benefit according to §§ 20 and 28 of the Second Book of the Code of Social Law for individual persons in need of assistance is ruled out. This is now made clear by § 3.3 sentence 1 2nd clause and sentence 2 and § 23.1 sentence 4 of the Second Book of the Code of Social Law, which were inserted with effect from 1 August 2006, according to which the benefits under §§ 20 et seq. of the Second Book of the Code of Social Law cover “the needs of employable persons in need of assistance” and “a determination of the needs in derogation therefrom” and “further benefits” are “ruled out”, but also corresponds to the opinion prevailing prior to the insertion of these provisions (see Decisions of the Federal Social Court (Entscheidungen des Bundessozialgerichts – BSGE) 97, 242 (248 marginal no. 19) with further references). Hence, the Second Book of the Code of Social Law no longer contains a provision corresponding to § 28.1 sentence 2 of the Twelfth Book of the Code of Social Law, as it already existed in the Federal Social Assistance Act, namely that a need can be determined in derogation from the standard rate, if it is completely or partly covered elsewhere in an individual case or its amount irrefutably deviates considerably from an average need.

a) The Second Book of the Code of Social Law only permits – in addition to provisions for some special situations detailed in terms of their elements in § 23.3 to § 26 of the Second Book of the Code of Social Law – in § 23.1 of the Second Book of the Code of Social Law the provision of additional benefits in the shape of benefits in kind and cash benefits as a rapidly repayable loan. The provision reads as follows in the original version of the Fourth Act for Modern Services on the Labour Market:

§ 23

Derogating provision of benefits

(1) If in an individual case a need that is covered by the standard benefits and is irrefutable to secure one’s livelihood under the circumstances can be covered neither by property according to § 12.2 no. 4, nor by other means, if appropriate documentation of the need is provided, the Employment Agency shall cover the need via a benefit in kind or cash benefit, and shall grant a corresponding loan to the person in need of assistance. In case of benefits in kind, the loan shall be granted in the amount of the purchase value incurred for the Employment Agency. The loan shall be repaid by monthly offsetting of up to ten per cent of the standard benefit respectively payable to the employable person in need of assistance and the dependants living with him or her in a joint household.

(2) ...

b) The legal literature and the case-law discuss whether and to what degree as compensation for an opening clause corresponding to § 28.1 sentence 2 2nd alternative of the Twelfth Book of the Code of Social Law in the Second Book of the Code of Social Law it is possible to invoke § 73 of the Twelfth Book of the Code of Social Law, which as a provision of the 9th Chapter of the Twelfth Book of the Code of Social Law is not covered by the exclusion of benefits ordered according to the Twelfth Book of the Code of Social Law in § 5.2 sentence 1 of the Second Book of the Code of Social Law and § 21 sentence 1 of the Twelfth Book of the Code of Social Law. The provision reads as follows:

§ 73

Assistance under other circumstances

Benefits may also be provided under other circumstances if they justify the use of public funds. Cash benefits may be provided as assistance or as loans.

According to the judgment of the Federal Social Court of 7 November 2006 – B 7b AS 14/06 R – (BSGE 97, 242 (249-250 marginal nos. 21 et seq.)), in untypical situations of need which are demonstrably close to the needs provided for in §§ 47 to 74 of the Twelfth Book of the Code of Social Law, additional benefits may be granted according to § 73 of the Twelfth Book of the Code of Social Law. The Federal Social Court presumed such an atypical need to exist with regard to those costs which are incurred by a divorced parent to exercise his or her right of access to his or her children. Over and above the case ruled on by the Federal Social Court, the preconditions for granting additional benefits for benefit recipients according to the Second Book of the Code of Social Law on the basis of § 73 of the Twelfth Book of the Code of Social Law have not yet been finally clarified in the social courts’ case-law. The Federal Social Court itself, both in the above-referenced ruling and in its submission orders, clarified that § 73 of the Twelfth Book of the Code of Social Law may not be re-interpreted to form a general catch-all provision for benefit recipients according to the Second Book of the Code of Social Law. Different rulings on whether an atypical need exists have been handed down in the higher courts’ case-law in individual cases (see for instance with regard to increased expenditure on the purchase of non-prescription medicines the Higher Social Court of North Rhine-Westphalia, order of 22 June 2007 – L 1 B 7/07 AS ER –, juris, marginal nos. 28-29, on the one hand, and the Higher Social Court of Baden-Württemberg, judgment of 22 November 2007 – L 7 SO 4180/06 –, juris, marginal no. 23, on the other). With regard to costs for the transport of school pupils, the Federal Social Court denied the existence of an atypical need (judgment of 28 October 2009 – B 14 AS 44/08 R –, currently only available as a report of the hearing).

5. In addition to the benefits to secure one’s livelihood, benefits to integrate into work, which were originally provided for in §§ 16 and 29 of the Second Book of the Code of Social Law, old version, are specified in §§ 16 to 16g of the Second Book of the Code of Social Law with effect from 1 January 2009 (Act on the Reorientation of Labour-Market Policy Instruments (Gesetz zur Neuausrichtung der arbeitsmarktpolitischen Instrumente ) of 21 December 2008 (Federal Law Gazette I p. 2917)). Employable persons in need of assistance can hence for instance receive benefits to promote further vocational training (§ 16.1 sentence 1 of the Second Book of the Code of Social Law, old version, and § 16.1 sentence 2 of the Second Book of the Code of Social Law, new version, in conjunction with §§ 77 et seq. and 417 of the Third Book of the Code of Social Law). If necessary for the integration of the employable person in need of assistance into the workforce, the basic provision institution may also provide services or cash (see § 4 of the Second Book of the Code of Social Law) to care for minor-age children (§ 16.2 sentence 2 no. 1 of the Second Book of the Code of Social Law, old version; now § 16a no. 1 of the Second Book of the Code of Social Law, new version).

II.

The legislature has borrowed from social assistance law when setting the standard benefit in §§ 20 and 28 of the Second Book of the Code of Social Law.

1. According to the Federal Social Assistance Act, the starting point of which followed an individualisation principle and which ordered in § 3.1 sentence 1 of the Federal Social Assistance Act that the nature, form and measure of social assistance were to be orientated towards the particularity of the individual case, above all towards the person of the assistance recipient, the nature of his or her need and the local circumstances, according to § 22.1 sentence 1 of the Federal Social Assistance Act recurrent benefits to secure one’s livelihood were in principle granted “according to standard rates” which were to be set by the Land (state) authorities according to instructions in Federal law and according to a Standard Rate Ordinance of the competent Federal Ministry. In addition to the benefits according to these standard rates, non-recurrent assistance was paid (see § 21 of the Federal Social Assistance Act), for instance to repair clothing, underwear and shoes, to purchase fuel for stand-alone heaters or special learning materials for school pupils, to repair household goods, for home repairs, to purchase durable household goods with a high purchase value and for special occasions (see § 21.1a of Federal Social Assistance Act in the version applicable since 27 June 1993, Federal Law Gazette I p. 944).

a) Since the entry into force of the Federal Social Assistance Act on 1 June 1962, the Land authorities initially determined the standard rates according to a basket-of-goods model. The basis was formed by a basket of goods prepared by the German Association for Public and Private Welfare (Deutscher Verein für öffentliche und private Fürsorge e.V. ), orientated in line with the living and consumption habits of lower income groups. On the basis of surveys carried out by the Federal Statistical Office on the household budget survey of selected private households, the reference group was formed by so-called household type 1, that is households made up of two adults who were pensioners or social assistance beneficiaries on a low income. When the basket-of-goods model applied, the standard rates were already set according to the principle that a standard rate was determined for the head of the household, which also applied to a single person, on the one hand, and standard rates for other household members by percentage deductions from the standard rate of the head of the household, on the other hand (see § 2.1 and § 2.3 of the Standard Rate Ordinance in the version of 20 July 1962, Federal Law Gazette I p. 515). The head of the household was the person who meets the general costs of the household. This system was based on the presumption that costs of general housekeeping were incurred in almost the same amount in each household, and hence a one-person household found housekeeping more expensive all in all than a household made up of several individuals (see Petersen, Die Regelsätze nach dem BSHG – ihre Bedeutung, Bemessung und Festsetzung –, Frankfurt a.M. 1972, pp. 30 et seq., 47 et seq.).

b) On the basis of an order of the Conference of the Highest Land Social Authorities, another method was taken up from 1 July 1990 for the assessment of the standard rate, namely the so-called statistical model. This model was entrenched in law with effect from 1 August 1996 in § 22.3 of the Federal Social Assistance Act in the version of Article 1 of the Act to Reform Social Assistance Law (Gesetz zur Reform des Sozialhilferechts ) of 23 July 1996 (Federal Law Gazette I p. 1088), which largely corresponds to today’s § 28.3 of the Twelfth Book of the Code of Social Law. The standard rates were now exclusively assessed according to the consumption conduct of lower income groups, as is above all recorded in statistical terms with the sample survey on income and expenditure. Households which had an income that was 4 % higher than the social assistance threshold were initially selected as a reference group. In a second step, the Land authorities determined which expenditure items of this reference group were to be placed in the assessment for the benefits (so-called consumption that is relevant to the standard rate, statistical basket of goods). This led to needs being excluded which the standard rates were not provided to cover because, as for example non-recurrent needs, these were paid for separately, and to those needs being ruled out which the legislature adopting the provisions did not consider to be typical of social assistance. Then, taking as a basis the data ascertained, the monthly expenditure of the reference group for consumption that is relevant to the standard rate was added to a standard rate amount.

The head-of-household principle was also retained within the statistical model. For this reason, one-person households constituted the reference group. For other household members, the German Association for Public and Private Welfare, commissioned by the Conference of Labour and Social Affairs Ministers with the participation of a working party made up of representatives of the Länder , the national local authority organisations and the national independent welfare organisations, developed a concept of indirectly deriving the standard rates on the basis of a modified calculus of differences. On the basis of the results of the sample survey on income and expenditure 1983, hence, three reference groups were initially formed (persons living alone, childless married couples and married couples with one child) whose net household income was above the social assistance threshold. The reference group of married couples with one child was in turn sub-divided into three groups by the age of the children (below 7; 7 to 14 and 14 to 18). The expenditure of the respective reference groups that is relevant to the standard rate was then ascertained and determined in line with the method applied to heads of household. Then, the differential amounts between the expenditure of the reference groups for consumption that is relevant to the standard rate were calculated and for this purpose married couples with one child were related to childless married couples, and married couples without children to single persons. Finally, the standard rates applicable to 1983, as well as the expenditure and differential amounts calculated in line with price increase rates, were extrapolated (see German Association for Public and Private Welfare, expert report: Neues Bedarfsbemessungssystem für die Regelsätze in der Sozialhilfe: Ableitung der Regelsätze für sonstige Haushaltsangehörige , Frankfurt a.M. 1989, pp. 12 et seq., 30-31, 36 et seq., 42 et seq., 49, 53 et seq., 58, 60 and 68).

On the basis of the extrapolated differential amounts, it was possible to produce a percentage ratio to the standard rate for heads of household. This was implemented in the provision contained in § 2.3 of the Standard Rate Ordinance in the version of the Second Ordinance Amending the Standard Rate Ordinance (Zweite Verordnung zur Änderung der Regelsatzverordnung ) of 21 March 1990 (Federal Law Gazette I p. 562; Standard Rate Ordinance 1990). The standard rates for other household members were now:

1. until completing the age of 7, 50 per cent, on co-habiting with a person who singly ensures the care and upbringing of the child, 55 per cent,

2. from the beginning of the age of 8 until completing the age of 14, 65 per cent,

3. from the beginning of the age of 15 until completing the age of 18, 90 per cent, and

4. from the beginning of the age of 19, 80 per cent

of the standard rates for a head of household. This provision remained in force until the Federal Social Assistance Act ceased to apply on 31 December 2004.

2. The main goal of the labour market policy reforms which were initiated in 2002 was to combine unemployment assistance and social assistance to form a uniform welfare system for employable persons. Here, the law to be newly created of the basic provision for job-seekers and the reformed social assistance law was to be coordinated as to major content-related points. The statistical model was to be retained. Another issue was to replace the non-recurrent assistance provided for in § 21.1a of the Federal Social Assistance Act, which was to be provided in addition to the recurrent standard rates, by topping up the standard benefit with a lump sum (see the motion for a resolution accepted by the Deutscher Bundestag in March 2002, Bundestag printed paper (Bundestagsdrucksache – BTDrucks) 14/7293, pp. 2-3).

a) The Federal Ministry of Health and Social Security, which was competent for social assistance law, developed first of all a calculation method for this in which non-recurrent needs were considered in the assessment of the standard rates by virtue of determined average consumption expenditure which had previously been covered by non-recurrent assistance being added to the consumption that is relevant to the standard rate. The work led to a preliminary draft to the Standard Rate Ordinance of 21 July 2003. This led in turn to a basic standard rate of Euro 340 in the old Länder .

b) Parallel to this, the Federal Ministry of Economics and Labour drew up a draft Bill for the Second Book of the Code of Social Law of 25 July 2003. The ministry draft did not develop its own method to assess the standard benefit, but took over in its § 20.2 for single persons the maximum monthly standard rate applicable on 1 July 2003 which was paid in the context of social assistance, that is Euro 297 for the old Länder including Berlin (East). § 20.3 and § 28.1 sentence 2 of the ministry draft of the Second Book of the Code of Social Law provided for percentage deductions corresponding to those provided for in § 20.3 and § 28.1 sentence 3 no. 1 of the Second Book of the Code of Social Law, old version. According to § 23.2 of the ministry draft of the Second Book of the Code of Social Law, the monthly standard benefit was to be added to by a lump sum for non-recurrent needs of 16 % of the standard benefit. According to § 28.1 sentence 5 of the ministry draft of the Second Book of the Code of Social Law, the lump sum for recipients of social benefit until completing the age of 14 was to be 20 % of the standard benefit, and 16 % from the beginning of the age of 15. As to the amount of this lump sum for non-recurrent needs, the grounds of the ministry draft of the Second Book of the Code of Social Law referred to the Federal Government’s Fourth Minimum Income Report. This states that special surveys of the Federal Statistical Office from 1981 and 1991 with the local social assistance institutions had revealed that single persons had been granted an average of 16 % of the respective standard rate for non-recurrent needs, whilst this figure was 17 % for adult household members and 20 % for children (see Bundestag printed paper 14/7765, p. 2). All in all, hence, mathematically a figure of Euro 345 per month was reached for single persons, Euro 310 for partners, Euro 276 for children from the beginning of the age of 15 and Euro 214 for children until completing the age of 14 (all amounts rounded).

c) The drafts were debated in a working party with participation by staff from both Ministries and by members of the parliamentary groups making up the Federal Government of that time. The SPD parliamentary group and the Alliance 90/The Greens parliamentary group then submitted the draft of a Fourth Act for Modern Services on the Labour Market to the Bundestag on 5 September 2003. The latter assumed as a standard benefit for single persons and single parents the amount of Euro 345 for the old Länder including Berlin (East) and stated as grounds that this amount had been ascertained by the evaluation of the sample survey on income and expenditure 1998 that had been carried out by the Federal Ministry of Health and Social Security in cooperation with the Federal Statistical Office, and which had been extrapolated to the level of 2003 (see Bundestag printed paper 15/1516, p. 56 on § 20.2). The standard benefit for partners (in each case 90 % of the standard benefit for single persons) was said to correspond to the mathematical average between the standard benefit for a single person and his or her partner. This arrangement was said to also make sense because, in couples, women were not as a rule regarded as the head of the household, and would hence only receive a smaller standard benefit of 80 % were no averaging calculation to be carried out (see Bundestag printed paper 15/1516, p. 56 on § 20.3). As to the standard benefit for the other relatives of the joint household (80 % and 60 % of the standard benefit for single persons, respectively), the grounds of the draft Bill were restricted to referring to the “new Standard Rate Ordinance to be issued” (see Bundestag printed paper 15/1516, p. 56 on § 20.3) and the “Festlegungen zum Zwölften Buch ” (see Bundestag printed paper 15/1516, p. 59 on § 28).

d) The draft Act Integrating Social Assistance Law into the Social Code also submitted to the Bundestag on 5 September 2003 emphasised the new conception of the standard rates which in future would accommodate the entire needs for one’s necessary livelihood in a lump sum, in other words also benefits for household appliances, clothing, etc., which, according to the Federal Social Assistance Act, were covered by non-recurrent assistance (see Bundestag printed paper 15/1514, p. 59 on § 29). The procedure to assess the standard rate was roughly outlined in the reasoning for the draft such that the content of the standard rate was determined by fixed percentages of the individual items from the sample survey on income and expenditure, whilst the lowest 20 % of one-person households stratified according to their net income, with the exception of one-person households drawing social assistance were to be used as a reference group. With regard to the details, it referred to the Standard Rate Ordinance still to be adopted (see Bundestag printed paper 15/1514, p. 52).

e) A Draft of the Standard Rate Ordinance with detailed reasoning from the Federal Ministry of Health and Social Security was forwarded to the associations involved by letter of 23 January 2004 and transmitted to the Bundesrat for approval by letter of 10 March 2004 (see Bundesrat printed paper (Bundesratsdrucksache – BRDrucks) 206/04). This draft was adopted unchanged after consent had been given by the Bundesrat on the basis of § 40 of the Twelfth Book of the Code of Social Law as the “Ordinance on the Implementation of § 28 of the Twelfth Book of the Code of Social Law (Standard Rate Ordinance) (Verordnung zur Durchführung des § 28 des Zwölften Buches Sozialgesetzbuch (Regelsatzverordnung – RSV) ) of 3 June 2004” (Federal Law Gazette I p. 1067) and came into force on 1 January 2005 (§ 6 of the Standard Rate Ordinance in the version of 3 June 2004 – Standard Rate Ordinance 2005 –).

aa) According to the Standard Rate Ordinance, the basic standard rate to be derived from the sample survey on income and expenditure forms the basis for the standard rates (§ 2.1 sentence 1 of the Standard Rate Ordinance). According to § 2.2 of the Standard Rate Ordinance, it is composed of the sum of consumption expenditure emerging from percentage shares of individual divisions of a special evaluation of the sample survey on income and expenditure drawn up by the Federal Statistical Office (consumption that is relevant to the standard rate). According to § 2.3 of the Standard Rate Ordinance, it is to be based on the consumption expenditure of the lowest 20 % of households in the sample survey on income and expenditure stratified according to their net income (lowest quintile) after removing recipients of social assistance benefits. The results of the sample survey on income and expenditure 1998 were initially used as the basis (§ 5 of the Standard Rate Ordinance 2005). The standard rates are to be determined according to § 3.1 sentence 1 of the Standard Rate Ordinance for the head of the household and for other household members. The standard rate for the head of the household, which also applies to single persons, is 100 % of the basic standard rate (§ 3.1 sentences 2 and 3 of the Standard Rate Ordinance).

bb) The relevant consumption for the basic standard rate determined in § 2.2 of the Standard Rate Ordinance 2005 is set out in the following table. Here, columns 1 and 2 depict the composition of the standard rate according to § 2.2 of the Standard Rate Ordinance 2005; column 3 summarises in keywords which consumption expenditure was not taken into account according to the Government’s reasoning (see Bundesrat printed paper 206/04, pp. 6 to 9):

As a result, the reasoning of the legislature handing down the Ordinance for the old Länder including Berlin (East), when rounded, shows the amount of Euro 345. This amount was calculated by extrapolating the initial value (DM 630.18), which had been obtained from the sample survey on income and expenditure 1998 according to the above procedure, according to the adjustment arrangement of § 4 of the Standard Rate Ordinance, that is on the basis of the changes in the current pension value since 1 July 1999 (see Bundesrat printed paper 206/04, p. 13). The resulting amount of Euro 345 was also taken as a basis for the time from 1 January 2005, since it was already known at the time when the draft Standard Rate Ordinance was being drawn up in 2005 that, because of the Act on the Suspension of the Adjustment of Pensions as per 1 July 2004 (Gesetz über die Aussetzung der Anpassung der Renten – RAAG), which had been promulgated as Article 2 of the Second Act Amending the Sixth Book of the Code of Social Law and other Statutes (Zweites Gesetz zur Änderung des Sechsten Buchs Sozialgesetzbuch und anderer Gesetze ) of 27 December 2003 (Federal Law Gazette I p. 3013), no increase in the current pension value would take place as per 1 July 2004.

cc) § 3.2 of the Standard Rate Ordinance 2005 set the standard rates for other household members at 60 % of the basic standard rate until completing the age of 14 and at 80 % from completing the age of 14. The reasoning for this reads as follows (see Bundesrat printed paper 206/04, p. 10-11):

“Subsection 2 simplifies the standard rate structure for household members as against § 2.3 of the Standard Rate Ordinance of 20 July 1962 by reducing the previous four age groups to two. The two age classes that were selected, namely ‘up to less than 14 years’ and ‘from 14 years’, correspond to internationally recognised scientific procedures, such as the modified OECD scale. They also correspond to the statutory determination for social benefit contained in § 28 of the Second Book of the Code of Social Law. The new shares of 60 per cent and 80 per cent of the basic standard rate, respectively, are orientated towards a scientific study carried out by the Federal Statistical Office (Ausgaben für Kinder in Deutschland – Berechnungen auf der Grundlage der Einkommens- und Verbrauchsstichprobe 1998 , Federal Statistical Office, Wirtschaft und Statistik, 12/2002, pp. 1080 et seq.), according to which children aged 14 and older cause roughly one-third higher costs than younger children. The new provisions also eliminate the excessive difference under the previous standard rate system in the benefits for small and large children, as well as the incomprehensible reduction in the benefits on coming of age. That different ages and situations, just as gender, particularly determine individual needs cannot be depicted with the necessary generalising view by generally valid and practicable arrangements. Since the statistically proven overall view did not show any significant differentiations beyond the graduations that have been made, one may also presume that as a rule different needs largely cancel one another out in this respect.”

III.

1. After the results of the sample survey on income and expenditure 2003 had become available, the Federal Statistical Office carried out a new special evaluation for the lowest quintile on behalf of the Federal Ministry of Labour and Social Affairs now responsible for the Second Book of the Code of Social Law and the Twelfth Book of the Code of Social Law. The Federal Ministry now determined the consumption that is relevant to the standard rate largely differently than set out in § 2.2 of the Standard Rate Ordinance 2005. Firstly, the household diaries in the survey of the sample survey on income and expenditure 2003 were carried out with more individual expenditure items; this meant that the results in their divisions, in particular in divisions 03 (Clothing and shoes), division 07 (Transport) and 09 (Leisure, entertainment and culture), were more detailed. Secondly, it was intended with individual expenditure items in divisions 03, 08 (Communication) and 09 to do without deductions based on estimates (see committee printed paper 16(11)286, pp. 1, 9-10, 13 et seq.). After the Federal Ministry had informed the Committee on Labour and Social Affairs of the German Bundestag of the proceedings and the result of the special evaluation (see committee printed paper 16(11)286), it drew up on this basis a First Ordinance Amending the Standard Rate Ordinance (Erste Verordnung zur Änderung der Regelsatzverordnung ), which was adopted unchanged on 20 November 2006 after approval had been given by the Bundesrat (Federal Law Gazette I p. 2657) and came into force on 1 January 2007 (Article 2 of the Ordinance).

In addition taking the consumption structure of all of Germany as a basis, which went along the harmonisation of the standard rates in the East and in the West, the amending ordinance was to serve to “largely dissolve normative definitions (evaluation items and deductions) and to take account of changes in consumption conduct” (see Bundesrat printed paper 635/06, pp. 4-5). Above all, the composition of the basic standard rate was changed. Columns 1 and 2 of the table below show the composition of the basic standard rate according to § 2.2 of the Standard Rate Ordinance 2007. Column 3 summarises in keywords the changes as against the previous version (see Bundesrat printed paper 635/06, pp. 6 to 8; committee printed paper 16(11)286, pp. 8 et seq.):

Division 10 (Education) remained unconsidered. The reasoning of the legislature handing down the ordinance once more shows as a result of the evaluation the rounded amount of Euro 345. This time, the amount emerges directly from the evaluation of the sample survey on income and expenditure 2003 (Bundesrat printed paper 635/06, p. 5; committee printed paper 16(11)286, pp. 1 et seq.). An increase in the standard rates was not necessary according to § 28.2 sentence 4 of the Twelfth Book of the Code of Social Law in the version of the Act Amending the Twelfth Book of the Code of Social Law and other Statutes (Gesetz zur Änderung des Zwölften Buches Sozialgesetzbuch und anderer Gesetze ) of 2 December 2006 (Federal Law Gazette I p. 2670), in force since 7 December 2006, and according to § 4 of the Standard Rate Ordinance, since the current pension value had not increased as per 1 July 2004, 2005 or 2006. A re-definition of the standard benefit according to the Second Book of the Code of Social Law also did not take place.

2. In reaction to the criticism from the Länder as regards the assessment of the standard benefit and of social benefit for children (see Bundesrat printed paper 33/07, 676/07, 906/07 and 329/08), the Federal legislature handed down supplementary provisions which came into force in mid-2009.

a) § 74 of the Second Book of the Code of Social Law was introduced with effect from 1 July 2009 (Article 19.3 of this Act) by virtue of Article 8 of the Act to Ensure Employment and Stability in Germany of 2 March 2009 (Federal Law Gazette I p. 416). The provision reads as follows:

§ 74

Act to Ensure Employment and Stability in Germany

Derogating from § 28.1 sentence 3 no. 1, the standard benefit from the beginning of the age of 7 until completing the age of 14 in the time from 1 July 2009 to 31 December 2011 shall be 70 per cent of the standard benefit that is material according to § 20.2 sentence 1.

Three age groups of children have therefore been formed since 1 July 2009. In the new age group from the beginning of the age of 7 until completing the age of 14, they receive a standard benefit of a rounded amount of Euro 251. The previous provision of § 28.1 sentence 3 no. 1 of the Second Book of the Code of Social Law is retained in the other two age groups.

The reasoning of the draft Bill of the CDU/CSU parliamentary group and the SPD parliamentary group on § 74 of the Second Book of the Code of Social Law merely indicates that households of unemployment benefit II recipients in which 6- to 13-year-old children live receive additional income available for consumption in an economically critical phase, and refers in other respects to the reasoning for the corresponding amendment of the Standard Rate Ordinance (§ 3.2 sentence 2 of the Standard Rate Ordinance in the version applicable since 1 July 2009; see Bundestag printed paper 16/11740, p. 30). This referred to a renewed special evaluation of the sample survey on income and expenditure 2003 which was orientated to the consumption of couples in households with one child in the lowest quintile. It was said that a sunset clause was required because of the upcoming review of the standard rate assessment according to the sample survey on income and expenditure 2008, the results of which would not be available until 2010 or 2011 (see Bundestag printed paper 16/11740, p. 34 on Article 15).

The Federal Government described the special evaluation in detail in its written statement and at the oral hearing. A scientific distribution scheme already developed for 1998, breaking down household-related consumption expenditure among the individual household members (see Münnich/Krebs, Ausgaben für Kinder in Deutschland – Berechnungen auf der Grundlage der Einkommens- und Verbrauchsstichprobe 1998 , Federal Statistical Office, Wirtschaft und Statistik, 12/2002, p. 1080 (1083 et seq., 1086)) was said to have been transferred to the calculation of children’s standard rates from the sample survey on income and expenditure 2003. It was said that one had therefore ascertained the individual expenditure items of the sample survey on income and expenditure 2003 (see committee printed paper 16(11)286, pp. 6-7) in the special evaluation according to the age of the child, on the basis of families with one child. There had been no examination of families with several children because, first and foremost, any differences in expenditure according to the age of children were to be ascertained and it would still have been necessary for families with several children to develop distribution keys between the individual children. Single parents were said to have been ignored because of their poorer financial situation in order not to underestimate the consumption expenditure on children. The special evaluation was said to have confirmed that the amount of the standard rates for the two age groups specified in the Act so far was more than adequate. A further result was however said to have revealed that children aged from 6 to 13 consumed more than had been considered in the Standard Rate Ordinance. The increased consumption which was said to occur from the age of seven was likely to be caused primarily by school attendance. This was said to cause consumption according to the Standard Rate Ordinance amounting to Euro 191.23 for children aged from 0 to 5, to an amount of Euro 240 for children aged from 6 to 13 and to an amount of Euro 257.66 for children aged from 14 to 17. The significant difference between the age groups 0 to 5 and 6 to 13 was said to have caused the legislature to introduce a third age group according to § 74 of the Second Book of the Code of Social Law.

b) By virtue of Article 3 no. 2 of the Act for the Promotion of Families and Domestic Services – Family Services Act (Gesetz zur Förderung von Familien und haushaltsnahen Dienstleistungen – Familienleistungsgesetz – FamLeistG) of 22 December 2008 (Federal Law Gazette I p. 2955), a new § 24a of the Second Book of the Code of Social Law was introduced with effect as per 1 August 2009. It was amended by Article 16 of the Act on Improved Fiscal Consideration of Preventive Expenditure – Act Reducing Health Insurance Burdens (Gesetz zur verbesserten steuerlichen Berücksichtigung von Vorsorgeaufwendungen – Bürgerentlastungsgesetz Krankenversicherung ) of 16 July 2009 (Federal Law Gazette I p. 1959) with effect as per 31 July 2009 (see Article 19.4 of the Act Reducing Health Insurance Burdens). It now reads as follows:

§ 24a

Additional benefit for school

School pupils who have not yet completed the age of 25 and who attend a general or vocational school shall receive an additional benefit for school of Euro 100 if they or at least one parent living in the household have on 1 August of the respective year a claim to benefits to secure one’s livelihood according to this Book. School pupils who do not live in the household of their parents or of one parent shall receive the benefit subject to the provisos of § 22.2a if on 1 August of the respective year they have a right to benefits to secure one’s livelihood according to this Book. The benefit shall not be provided if the school pupil has a right to a training allowance. The competent institution granting the basic provision for job-seekers can demand in justified individual cases proof of use of the benefit in line with its purpose.

The reasoning of the Federal Government’s draft Bill on § 24a of the Second Book of the Code of Social Law in the version of the Family Services Act reads as follows (see Bundestag printed paper 16/10809, p. 16 on Article 3 no. 2):

“By granting an annual non-recurrent benefit of Euro 100, the Federal Government complies with its concern to particularly promote the schooling of children and juveniles from families which cannot, or cannot completely, make a living from means and strength of their own. The claim is orientated in line with the annual start of the school year. For this reason, need of assistance must exist at this time. … The lump sum payment particularly covers the necessary equipment at the start of the school year. This benefit changes nothing as to the responsibility incumbent on the Länder for schooling in the context of the federal exercise of tasks. This benefit serves in particular to acquire articles of personal equipment for school (e.g. school bag, school rucksack, gym kit, gym bag, recorder) and for writing, arithmetic and drawing material (e.g. fountain pen including ink cartridges, ball-point pen, pencils, crayons, paint box, exercise books, writing pads, paper, rulers, book covers, compasses, calculator, geometry set square).”

The reasoning of the draft Bill does not contain any information on the composition of the amount of Euro 100 or how it was calculated. The reasoning regarding the provision contained in the Twelfth Book of the Code of Social Law (§ 28a of the Twelfth Book of the Code of Social Law) corresponding to § 24a of the Second Book of the Code of Social Law only states that this amount is suitable in social policy terms in view of the Federal Government’s education policy goal (see Bundestag printed paper 16/10809, p. 16 on Article 4 no. 3).

IV.

1. a) The plaintiffs of the original proceedings 1 BvL 1/09 form a three-person family, consisting of the plaintiff re 1), who was born in 1962, his wife, who was born in 1963, the plaintiff re 2), and their daughter, who was born in 1994, the plaintiff re 3). They have been drawing benefits of the basic provision for job-seekers since 1 January 2005. For the period material to the action, that is from 1 January 2005 to 30 June 2005, the defendant of the original proceedings granted them monthly benefits totalling Euro 825. The grant contained benefits for housing and heating totalling Euro 150, a standard benefit for the plaintiff re 1) and the plaintiff re 2) of Euro 311 each and a standard benefit of Euro 53 for the plaintiff re 3), which emerged from the statutory standard benefit of Euro 207 because child benefit of Euro 154 per month was offset.

b) After unsuccessful objection proceedings, the plaintiffs requested before the Social Court to be granted higher benefits, putting forward that the statutory standard benefit was insufficient to ensure their subsistence minimum. The Social Court dismissed the action, inter alia making reference to the judgment of the Federal Social Court of 23 November 2006 (B 11b AS 1/06 R, BSGE 97, 265 (275 et seq. marginal nos. 46 et seq.)), according to which the standard benefit for single persons is compatible with the Basic Law.

After consulting expert reports on the question of the calculation, amount and means-tested nature of the standard benefit, the Higher Social Court of Hesse suspended the proceedings on appeal on points of fact and law and submitted the following question to the Federal Constitutional Court for a ruling:

whether § 20.1 to § 20.3 and § 28.1 sentence 3 no. 1 of the Second Book of the Code of Social Law – Basic Provision for Job-seekers (Second Book of the Code of Social Law), in the version of Article 1 of the Fourth Act for Modern Services on the Labour Market of 24 December 2003 (Federal Law Gazette I pp. 2954 and 2955), are compatible with the Basic Law, in particular with Article 1.1 of the Basic Law, Article 3.1 of the Basic Law, Article 6.1 and Article 6.2 of the Basic Law, as well as Article 20.1 and Article 20.3 of the Basic Law (principles of the rule of law and of the social welfare state).

It stated as grounds that the defendant had allegedly correctly calculated the benefits granted according to § 20.2 and § 20.3 and according to § 28.1 sentence 3 no. 1 of the Second Book of the Code of Social Law in conjunction with § 11.1 sentence 3 of the Second Book of the Code of Social Law. The plaintiffs were not entitled to higher benefits, either according to the Second Book of the Code of Social Law (§§ 21, 23 and 24 of the Second Book of the Code of Social Law) or according to the Twelfth Book of the Code of Social Law, in particular according to § 73 of the Twelfth Book of the Code of Social Law; an extensive interpretation of these provisions in conformity with the constitution was said to be ruled out. The Senate considered the provisions of § 20.1 to § 20.3 and § 28.1 sentence 3 no. 1 of the Second Book of the Code of Social Law, which were relevant to the ruling, to be incompatible with the Basic Law.

With regard to the plaintiff re 3), the legislature is said in § 20.1 to § 20.3 of the Second Book of the Code of Social Law in conjunction with § 28.1 sentence 3 no. 1 of the Second Book of the Code of Social Law to have violated its mandate to ascertain and to guarantee her need to cover the subsistence minimum following from the state’s watchdog function – Article 6.2 sentence 2 of the Basic Law – and from Article 1.1 of the Basic Law in conjunction with Article 20.1 of the Basic Law. The reasoning adopted by the legislature in having recourse to the Twelfth Book of the Code of Social Law and the Standard Rate Ordinance for the social benefit set in § 28.1 sentence 3 no. 1 of the Second Book of the Code of Social Law with children aged from 0 to 14 to 60 % of the standard benefit according to § 20.2 of the Second Book of the Code of Social Law, that is to Euro 207, was said not to be tenable. The OECD scale put forward as grounds was said not to serve to ascertain the need necessary for the subsistence minimum. The study carried out by the Federal Statistical Office was also said not to support the standard rates for children, especially since in that case not two but four age groups from 0 to 5, 6 to 12, 13 to 18 years and older were formed. The study was said to emphasise particularities of households on low incomes with children; these were however said not to have been taken into account at all. The lack of consideration of the need of care and upbringing which is part of the subsistence minimum according to the order of the Federal Constitutional Court of 10 November 1998 (2 BvR 1057/91, Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts – BVerfGE) 99, 216, 231 et seq.), was said to also lead to not achieving the subsistence minimum. It was said to be incompatible with the ruling of the Federal Constitutional Court not to take on the amount of Euro 2,160 calculated in fiscal law for social assistance law. The additional amount of Euro 100 per school year for school children according to § 24a of the Second Book of the Code of Social Law was said not to remedy the insufficient cover.

Furthermore, the Senate argued that it saw with children of the age of the plaintiff re 3) violations of the principle of equality – Article 3.1 of the Basic Law – in two directions: Firstly because the social benefit granted to them, despite evident differences in the need as against those of newborns and small children, was an identical amount, and secondly because children of the same age whose parents received social assistance according to the Twelfth Book of the Code of Social Law were said to be placed in a better position without a sound reason, despite having the same needs. The needs of children of the age of the plaintiff re 3) were said to differ considerably from those of newborns. The study carried out by the Federal Statistical Office was said to show the need to distinguish by age groups. Children whose parents received benefits according to the Twelfth Book of the Code of Social Law were said to receive regionally higher standard rates and to benefit from the opening clause contained in § 28.1 sentence 2 of the Twelfth Book of the Code of Social Law.

Furthermore, the Senate put forward that it was of the view that the special prohibition of discrimination against marriage and the family – Article 3.1 in conjunction with Article 6.1 of the Basic Law – was violated by virtue of the fact that, in assessing the standard benefit, not the lowest fifth of households stratified according to their net income, but the group of one-person households was said to have been used as a reference group, whose income and consumption data were far below the level of family households. Since this effect was not compensated for by advantages of joint housekeeping, family households were said to suffer disadvantages when it came to assessing the standard benefit.

This failure to cover the needs of the plaintiff re 3) in line with the subsistence minimum, as well as the violation of the prohibition of discrimination, was said to violate at the same time the “subsistence minimum of the family” from Article 1.1 of the Basic Law in conjunction with Article 20.1 and Article 6.1 of the Basic Law, and hence also the socio-cultural subsistence minimum of the plaintiffs re 1) and 2) by § 20.2 and § 20.3 of the Second Book of the Code of Social Law.

Finally, the statutory provisions were also said to violate the constitutional standards of systematic consistency, clarity and consistency of statutes as well as of the prohibition of arbitrariness from Article 3.1 of the Basic Law and Article 20.3 of the Basic Law. The legislature was said to have already breached the principle of the rule of law when selecting the reference group, above all because, in contradistinction to its own prerequisites, it had not consistently separated the households drawing social assistance, and had not taken into consideration the “grey area” of those persons who did not claim social assistance benefits although they had a right to them. Moreover, the Ordinance was said to separate the results of the sample survey on income and expenditure into parts that are relevant to the standard rate and those which are not relevant to the standard rate without any clear explanation of the reasoning for this. With regard to the appropriateness for families and children provided in § 16 and § 27.2 of the Twelfth Book of the Code of Social Law and § 1.1 sentence 4 no. 4 of the Second Book of the Code of Social Law, in particular the removal of education (division 10) was said not to be consistent. It was said not to be compatible with the principle of the rule of law that standard benefits according to the Second Book of the Code of Social Law derogated from the children’s subsistence minimum in other legal fields, for instance in the law on maintenance. What is more, the adjustment of the standard benefit in line with the change in the pension value according to § 20.4 of the Second Book of the Code of Social Law was said not to be expedient. It was said moreover to run counter to the principle of the rule of law to quantify the subsistence minimum in the Second Book of the Code of Social Law, but to leave its definition and calculation to the legislature handing down the ordinance. Finally, the standard benefit of the Second Book of the Code of Social Law was said to have already been set prior to the draft of the Standard Rate Ordinance, so that not even an appearance of proper proceedings had been kept up.

2. a) In the original proceedings 1 BvL 3/09, exclusively the children of the persons in need of assistance, who were born in 1991 and 1993, are bringing an action. The action relates to benefits for January 2005 and February 2005, including the costs of housing and heating.

The defendant joint agency (ARGE) granted to the joint household consisting of the plaintiffs and their parents standard benefits and benefits for housing and heating for January 2005 totalling Euro 842.59 and for February 2005 totalling Euro 824.89. Of this, the plaintiffs accounted for Euro 102.56 each for January 2005 and Euro 100.41 each for February 2005. When calculating the benefits, the joint agency took as a basis a standard benefit of Euro 207 each for the plaintiffs and costs for housing totalling Euro 588.02, and considered as income-reducing benefits both the child benefit paid for the plaintiffs and the gainful income of the parents. In the result, the benefits granted to the plaintiffs according to § 9.2 sentence 3 of the Second Book of the Code of Social Law and § 19 sentence 2 of the Second Book of the Code of Social Law, old version, were exclusively benefits for housing and heating, given that the income to be taken into account exceeded the fixed amount of the standard benefit.

b) The plaintiffs unsuccessfully claimed the granting of higher benefits in the objection proceedings and in the legal action before the Social Court (Sozialgericht ) and the Higher Social Court. The Federal Social Court suspended the proceedings on appeal on points of law and submitted the following questions to the Federal Constitutional Court for a ruling:

Is § 28.1 sentence 3 no. 1 of the Second Book of the Code of Social Law in the version of the Fourth Act for Modern Services on the Labour Market of 24 December 2003 (Federal Law Gazette I p. 2954), which came into force as per 1 January 2005, compatible with

1. Article 3.1 of the Basic Law in conjunction with Article 1, Article 6.2 and Article 20.1 of the Basic Law insofar as the statute makes provision for a standard benefit amounting to only 60 % of the standard benefit that is material for adults according to § 20.2 of the Second Book of the Code of Social Law for children until completing the age of 14 without the needs necessary for children being ascertained and defined,

2. Article 3.1 of the Basic Law insofar as social benefit for children of beneficiaries of the basic provision for job-seekers according to the Second Book of the Code of Social Law is to be exhaustive and needs-covering, whilst children of social assistance beneficiaries according to § 28.1 sentence 2 of the Twelfth Book of the Code of Social Law may assert derogating needs,

3. Article 3.1 of the Basic Law insofar as § 28.1 sentence 1 no. 3 of the Second Book of the Code of Social Law uniformly sets the amount of the standard benefit at 60 % for all children and juveniles until completing the age of 14 without in doing so making provision for further age groups?

The Federal Social Court considers the constitutionality of the provision submitted to be material to the ruling. Since the Higher Social Court did not make any findings regarding the suitable costs for housing and heating and the additional income of the plaintiff’s parents, the legal action should be remitted to the Higher Social Court in this respect. The Senate however considered it to be necessary for reasons of procedural economy to initially suspend the legal action according to Article 100.1 of the Basic Law because the ruling on the constitutional question was indispensable for a final adjudication of the case after the facts had been clarified by the Higher Social Court because the plaintiffs themselves might be entitled to higher standard benefits even if both items were calculated incorrectly.

With regard to constitutional law, the Federal Social Court however retains its established case-law, namely that the legislature had adhered to its margin of appreciation in the sense that it had set the standard benefit for single persons at Euro 345 according to § 20.2 of the Second Book of the Code of Social Law. It was said to be impossible to precisely quantify the right to granting the subsistence minimum derived from Article 1 in conjunction with Article 20 of the Basic Law. It was said that the standard benefit had to be measured in an overall view with the other benefits, in particular the benefits to integrate into work according to §§ 14 et seq. of the Second Book of the Code of Social Law. Reservations against the method used to calculate the standard benefit were said not to be tenable since there was said to be no legal right to a specific procedure or to a specific outcome. Because a margin of evaluation was always said to remain, it was said to be impossible to examine whether the legislature had calculated “correctly”.

Unlike with the ascertainment of the standard benefit for single persons, the legislature is however said to have departed without adequate reason from the logic made by the law itself which it itself had established in determining the child-specific need, and to have even completely forgone a realistic determination of the needs of children. The Senate argued that it considered this to constitute a violation of Article 3.1 of the Basic Law. According to the principle of consistency, there should have been detailed reasoning and a realistic record made of children’s minimum needs. The reasoning for the deductions of 20 % and 40 % of the standard benefit for single persons was said not to be sufficient in the light of Article 3.1 of the Basic Law. The OECD scale consulted for this was said not to aim at all to constitute a determination of the subsistence minimum for children. The named study of the Federal Statistical Office was said to explicitly indicate that the data collected could not be equated with children’s cost of living. It was said to thus remain unclear how the amount of Euro 207 for children until completing the age of 14 was constituted. In particular it was said not to be possible to recognise whether the legislature, which had already not considered division 10 (Education) of the sample survey on income and expenditure in assessing the standard benefit for single persons, had at all included educational expenditure on children and juveniles. The legislature was said neither to have indicated which latitude it intended to exercise, nor to have it exercised it at all. The unequal treatment was not remedied as per the start of 2005 by the new provisions as per 1 August 2009 (§ 24a of the Second Book of the Code of Social Law) and 1 July 2009 (§ 74 of the Second Book of the Code of Social Law), but rather emphasised.

There was said not to be any factual reason to grant benefits for derogating needs to children of social assistance beneficiaries according to § 28.1 sentence 2 of the Twelfth Book of the Code of Social Law, but to refuse to grant such benefits to children of benefit recipients according to the Second Book of the Code of Social Law. Unlike with adult single persons, the point of view of employability was said not to apply as a justification of unequal treatment.

Finally, the setting of a uniform standard benefit for all children until completing the age of 14 was said to breach the principle of equality. It was said not to be comprehensible why the legislature had not fallen back on the age groups used in the study of the Federal Statistical Office which itself had quoted. It was said that no grounds whatever had been given for derogating from the previous distinction carried out in § 2.3 of the Standard Rate Ordinance to the Federal Social Assistance Act and for carrying out a deduction for children from completing the age of seven, although school children had greater needs than pre-school children, as the legislature itself was said to now recognise in § 24a of the Second Book of the Code of Social Law. Whether the non-recurrent amount of Euro 100 provided for in § 24a of the Second Book of the Code of Social Law was sufficient for this could not be adjudged given that no grounds whatever had been given.

The higher standard benefit desired by the plaintiffs and the additional coverage of needs was said not to be achievable by means of an interpretation of non-constitutional law in conformity with the constitution.

3. a) The plaintiffs of the original proceedings 1 BvL 4/09 are only the children, who were born in 1997 and 2000. The joint household consisting of the plaintiffs and their parents received a total of Euro 716.88 per month for the period material to the action, that is from 1 January 2005 to 30 April 2005. Of this, Euro 104.60 per month was accounted for by the plaintiffs. When calculating the benefits, the joint agency, the defendant in the original proceedings, took the child benefit paid and the gainful income of the father into account. According to § 9.2 sentence 3 of the Second Book of the Code of Social Law and § 19 sentence 2 of the Second Book of the Code of Social Law, old version, the plaintiffs were ultimately exclusively granted benefits for housing and heating since the income to be counted exceeded the standard benefit.

b) The action to grant higher benefits, which they brought after their objection had been unsuccessful, was unsuccessful before the Social Court and the Higher Social Court. The Federal Social Court suspended the proceedings on appeal on points of law according to Article 100.1 of the Basic Law and submitted to the Federal Constitutional Court the same question for a ruling as in submission proceedings 1 BvL 3/09. The remarks of the Federal Social Court on the materiality of the legal question for the ruling and on its conviction of the unconstitutionality of the material provision are identical to the reasoning contained in submission 1 BvL 3/09.

V.

The Federal Ministry of Labour and Social Affairs on behalf of the Federal Government, the plaintiffs of the original proceedings 1 BvL 1/09 and 1 BvL 3/09, the German Confederation of Trade Unions (Deutscher Gewerkschaftsbund ), the Lower Saxony State Chancellery (Staatskanzlei ), the Ministry for Labour, Health and Social Affairs of the Land North Rhine-Westphalia, the Diakonie Bundesverband, the German Social Court Conference (Deutscher Sozialgerichtstag ), the VdK Social Association (Sozialverband VdK ), the German Caritas Association (Deutscher Caritasverband ) and the German Association for Public and Private Welfare made statements with regard to the submission orders.

1. a) The Federal Government considers the submissions to be inadmissible. The Federal Social Court is said not to have put forward the indispensability of the submission since it itself presumed that there was another procedural possibility to obtain higher benefits, namely by remitting the proceedings to the court of appeal on points of fact and law for further ascertainment of the facts. Reasons of procedural expedience could not justify a submission. The standards of constitutional law were said not to be clear in any of the submission orders. The submitting courts were said not to have adequately dealt with other benefit claims and offers of assistance.

b) The submissions are said to be at any rate ill-founded.

aa) The constitutional obligation to guarantee the subsistence minimum, which is said not to be able to be restricted to “survival pure and simple”, but also had to facilitate participation in the life of society, is said to follow from Article 1.1 of the Basic Law in conjunction with the principle of the social welfare state. The development of the benefit concept was said here to be a matter for the legislature, which was granted broad latitude. A realistic assessment of need which did justice to the benefit concept was said to be constitutionally required, but the legislature was said not to be subject to an obligation to provide reasoning. In determining the subsistence minimum, the legislature was said to be bound by Article 3.1 of the Basic Law in its manifestation as a principle of systematic consistency and expedience. Finally, corresponding to the concept of a “learning system”, the legislature was said to be subject to an obligation to observe and correct.

bb) These requirements were said to be met by both the standard benefit according to § 20.1 to § 20.3 of the Second Book of the Code of Social Law and by social benefit according to § 28.1 sentence 3 no. 1 of the Second Book of the Code of Social Law. The benefit concept of the Second Book of the Code of Social Law was said, according to Article 1.1 of the Basic Law, to be orientated towards individual responsibility assumed by the individual’s using their earning capacity, with the aim of rapidly assisting the persons in need of assistance to ensure their own subsistence. A lump sum was said to promote individual responsibility in the use of social benefit. The statistical model applied for the assessment was said to constitute a justifiable method to ascertain the subsistence minimum. The adjustment of the standard benefit according to developments in prices was said not to be constitutionally required. It was said that the grading of the standard benefit provided for in § 20.2 and § 20-.3 of the Second Book of the Code of Social Law was reasonable in that it considered in a generalising and valuating manner a cost saving to result from joint housekeeping. When ascertaining the needs for the children’s subsistence minimum according to § 28.1 sentence 3 no. 1 of the Second Book of the Code of Social Law, the statistical model was said to be linked with the everyday experience that a joint household reduced individual expenditure. What is more, the 60 % threshold was said to have proven to be a suitable median between simplification of the administration and avoiding earlier, doubtful delimitations.

The concrete form lent to the children’s subsistence minimum was said to be within the framework of Article 3.1 of the Basic Law, given that the legislature had reached a justifiable concrete form on the basis of the data available at that time, proven plausible presumptions and valuing deductions. A model to ascertain the specific needs of children from the results of the sample survey on income and expenditure was said to only have come into being after the Second Book of the Code of Social Law had been issued. Differences between the provisions of the Second Book of the Code of Social Law and of the Twelfth Book of the Code of Social Law, in particular the lack of an opening clause corresponding to § 28.1 sentence 2 of the Twelfth Book of the Code of Social Law in the Second Book of the Code of Social Law, were said to be compatible with Article 3.1 of the Basic Law. The opening clause contained in § 28.1 sentence 2 of the Twelfth Book of the Code of Social Law was said to only be needed in a small number of exceptional cases in practice. The differences were said to be justified by virtue of the benefit concept of the Second Book of the Code of Social Law, building on individual responsibility, and the parental responsibility to be considered according to Article 6.2 sentence 1 of the Basic Law because employable parents of children were obliged to make sure that needs were met through work.

The legislature was said to have met its constitutional obligation to observe and correct by means of the adjustment according to § 20.4 of the Second Book of the Code of Social Law and by the new provisions contained in §§ 24a and 74 of the Second Book of the Code of Social Law. The adjustment to the current pension value was said to reflect the level of prosperity development in society. If prices for necessary needs rose more rapidly than pensions, the constitution was said to also directly impose on the legislature an obligation to adjust the standard benefit.

2. The German Confederation of Trade Unions and the plaintiffs of the original proceedings 1 BvL 1/09 and 1 BvL 3/09 consider § 20.1 to § 20.3 of the Second Book of the Code of Social Law and § 28.1 sentence 3 no. 1 of the Second Book of the Code of Social Law to be unconstitutional. There is said to be no realistic ascertainment of the standard benefit of Euro 345. It was said to have been omitted to remove the “hidden poor” from the reference group. The determination of consumption by means of deductions was said not to be comprehensible; a regionally different need in the field of transport had not been considered. Furthermore, it was said that an opening clause was required for atypical needs. The lower 20 % of one-person households were said to form a reference group that was not suited to determine a standard rate for children and families. Needs that were typical of families and children were said not to have been considered. It was doubtful whether the new provisions of §§ 24a and 74 of the Second Book of the Code of Social Law were based on an expedient calculation. The extrapolation of the sample survey on income and expenditure 1998 according to the current pension value was said not to do justice to price developments and other changes. The plaintiffs of the original proceedings 1 BvL 1/09 and 1 BvL 3/09 are, moreover, asserting reservations against the sample survey on income and expenditure, against its use for assessing benefits and against the manner of implementation of the legislative procedure.

3. The Lower Saxony State Chancellery, the Ministry for Labour, Health and Social Affairs of the Land North Rhine-Westphalia, the Diakonie Bundesverband, the German Social Court Conference and the VdK Social Association concur with the view of the submitting courts on the unconstitutionality of social benefit according to § 28.1 sentence 3 no. 1 of the Second Book of the Code of Social Law. The benefit for children is said not to have been calculated in a comprehensible and logical manner. Its being derived from the standard benefit of a single person was said not to accommodate the development-related needs of children and juveniles, especially since division 10 of the sample survey on income and expenditure (Education) and the needs of children for lunch in all-day schools and in day facilities had not been covered. An opening clause corresponding to § 28.1 sentence 2 of the Twelfth Book of the Code of Social Law would have to be introduced for special needs. The German Social Court Conference refers as to the lack of distinction within the group of children until completing the age of 14 to the fact that the legislature always presumed different needs of children and juveniles as per age with other needs-related benefits (maintenance right, advance maintenance payments and nursing care allowance according to the Eighth Book of the Code of Social Law), and distinguished between three age groups. The Diakonie Bundesverband submits that there was no delimitation of social benefit to the different benefits of the Länder and local authorities for school and leisure time. If, in the context of its concurring legislative competence, the Federal legislature wished only to cover part of the needs and leave the rest to the Länder and local authorities, it would have been necessary to comprehensibly distinguish between the different types of needs in the Second Book of the Code of Social Law.

4. The German Caritas Association refrains from a constitutional evaluation, but concurs with the criticism of the proceedings of the assessment of the standard benefit. It complains above all that hidden poor people had not been left out of the reference group, and that because of the adjustment of the standard rate according to pension developments price increases had only been inadequately considered. The legislature handing down the ordinance was said to have committed the error in division 07 (Transport) of the sample survey on income and expenditure of not accommodating expenditure on motor vehicles although a suitable motor vehicle belonged to the protected property in the Second Book of the Code of Social Law and many households used a motor vehicle in addition to public transport, with the consequence that their expenditure on local public transport was lower. The calculations of the German Caritas Association without such shortcomings were said to indicate that social benefit for children was too low; for instance it should have been Euro 265 instead of Euro 211 in autumn 2008 for children aged from 6 to 13.

5. The German Association for Public and Private Welfare points out that the assessment of a benefit under welfare law to secure one’s livelihood was so closely linked to political views and valuations that it was virtually impossible for a specific quantitative standard to emerge from the constitution itself. It takes the view that the sample survey on income and expenditure formed a suitable basis for the assessment of minimum benefits of a social welfare state. The statistical model of the Standard Rate Ordinance 2005 was said to be based on the consumption conduct of the lowest income group, not including social assistance beneficiaries. By excluding assistance recipients from this group, a viable basis was said to be formed to assess the standard rate. In refining the statistical model, it should be ensured that needs were not underestimated and that an expedient extrapolation factor was found.

VI.

In the oral hearing held on 20 October 2009, the Federal Government went into greater detail as to its submission. Furthermore, the Federal Constitutional Court heard the plaintiff of the original proceedings, the Senate of the Free Hanseatic City of Bremen, the German Caritas Association, the German Confederation of Trade Unions, the Diakonie Bundesverband, the German Social Court Conference, the German Association for Public and Private Welfare and the Federal Statistical Office.

B.

The submissions are admissible.

I.

1. a) In the original proceedings of the Higher Social Court of Hesse, the validity of § 20.2 1st clause and § 20.3 sentence 1, as well as of § 28.1 sentence 3 no. 1 1st alternative of the Second Book of the Code of Social Law, old version, in each case in conjunction with § 20.1 of the Second Book of the Code of Social Law, old version, is of importance within the meaning of Article 100.1 sentence 1 of the Basic Law, given that these provisions and their constitutionality are decisive for the decision of the submitting court.

aa) § 20.3 sentence 1 and § 28.1 sentence 3 no. 1 1st alternative of the Second Book of the Code of Social Law, old version, determine the amount of the standard benefit in the period material to the action. The request of the plaintiff of the original proceedings to be granted a higher standard benefit cannot be met if the provisions are compatible with the Basic Law. Materiality for the ruling is not opposed by the fact that the Federal Constitutional Court can order the continued application of the previous law in a declaration of incompatibility (see BVerfGE 117, 1 (28) with further references).

bb) The constitutionality of § 20.2 1st clause of the Second Book of the Code of Social Law, old version, is also material to the ruling, given that the standard benefit of Euro 345 in the old Länder forms the basis of the standard benefit granted to the plaintiffs of the original proceedings. If the amount of Euro 345 does not meet constitutional prerequisites, the statutory benefits that are applicable for the plaintiff of the original proceedings are also incompatible with the Basic Law, given that they are derived as percentage shares of this standard benefit.

cc) The provisions regarding the amount of the standard benefit furthermore include § 20.1 of the Second Book of the Code of Social Law, old version, because it defines the needs which it is to cover. The amount of the standard benefit also depends on this determination of the needs. It additionally forms the basis for the review of whether the amounts of § 20.2 1st clause and § 20.3 sentence 1 of the Second Book of the Code of Social Law, old version, and of § 28.1 sentence 3 no. 1 1st alternative of the Second Book of the Code of Social Law, old version, sufficiently cover needs.

b) aa) By contrast, the original proceedings are not concerned with the validity of the standard benefit of Euro 331 (§ 20.2 2nd clause of the Second Book of the Code of Social Law, old version) which was applicable at that time in the new Länder and of the amount of 80 % of the standard benefit (§ 20.3 sentence 2 of the Second Book of the Code of Social Law, old version) applicable to children from the beginning of the age of 15 (§ 28.1 sentence 3 no. 1 2nd alternative of the Second Book of the Code of Social Law, old version) and for other dependants who are employable. It emerges from the submission of the Higher Social Court of Hesse that these provisions are not to be the subject-matter of the proceedings on the constitutionality of a statute. In this respect, it relates solely to § 20.2 1st clause and to § 20.3 sentence 1 of the Second Book of the Code of Social Law, old version, as well as to § 28.1 sentence 3 no. 1 1st alternative of the Second Book of the Code of Social Law, old version, in each case in conjunction with § 20.1 of the Second Book of the Code of Social Law, old version.

bb) The question submitted is furthermore to be restricted in that only the amount of the standard benefit, the proceedings of their assessment and the fact of their being awarded as a fixed amount are to be subjected to a constitutional review. By contrast, it is not to be clarified whether Article 3.1 of the Basic Law is violated because social assistance beneficiaries are placed in a more favourable position by § 28.1 sentence 2 2nd alternative of the Twelfth Book of the Code of Social Law than benefit recipients according to the Second Book of the Code of Social Law. In proceedings according to Article 100.1 of the Basic Law, only those legal questions may be submitted to which legal significance attaches in the original proceedings (see BVerfGE 117, 272 (291)). If the unconstitutionality of a provision is reasoned by asserting a violation of Article 3.1 of the Basic Law, this is only material to the ruling if particularly the plaintiff of the original proceedings is affected by the impugned discrimination (see BVerfGE 66, 100 (105 et seq.); 67, 239 (244)). It is not evident, nor has it been submitted, that the plaintiffs of the original proceedings would have received higher benefits if they had had claims to assistance to secure their livelihood according to the Twelfth Book of the Code of Social Law.

2. The Higher Social Court of Hesse in accordance with § 80.2 sentence 1 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG ) adequately made a case for the degree to which its ruling depends on the validity of the above provisions and with which superior legal provision they are incompatible. It stated, evaluating the case-law and the literature, that no higher benefits according to §§ 21, 23 and 24 of the Second Book of the Code of Social Law and § 73 of the Twelfth Book of the Code of Social Law were a consideration in the original proceedings and that therefore only the constitutionality of the standard benefit was relevant. Moreover, it put forward its conviction as to the unconstitutionality of the provisions that were submitted (see on this BVerfGE 78, 165 (171-172)) by dealing in detail with their genesis, with the relevant case-law of the Federal Social Court and of the Federal Constitutional Court, as well as with the literature on this (see with regard to these requirements BVerfGE 86, 71 (77-78); 89, 329 (337)), and provided detailed reasoning for its own views. Finally, it reviewed and reasonably denied the possibility of a priority interpretation in conformity with the constitution (see BVerfGE 85, 329 (333); 88, 187 (194)).

II.

The submissions of the Federal Social Court meet the requirements of Article 100.1 sentence 1 of the Basic Law and of § 80.2 sentence 1 of the Federal Constitutional Court Act, albeit the questions submitted are also to be restricted in line with the above statements.

The constitutionality of § 28.1 sentence 3 no. 1 1st alternative of the Second Book of the Code of Social Law, old version, on social benefit for children until completing the age of 14, to which the submissions are restricted, is material to the ruling in the proceedings of the Federal Social Court.

This is not contradicted by the fact that individual elements of the parents’ income that are to be deducted and of the costs for housing and heating to calculate social benefits of the plaintiff have not yet been clarified, and that the Federal Social Court would therefore definitely like to remit the legal action to the court of appeal on points of fact and law for further clarification of the facts and for a final ruling. For the evaluation of materiality to the ruling, in principle the operative provisions of the ruling at the respective instance are material (see BVerfGE 16, 286 (293); 18, 257 (263); 24, 119 (133-134); 104, 74 (82)) and a submission is only admissible if all evidence has been taken as required (see BVerfGE 11, 330 (334-335); 50, 108 (113)). A submission may also be exceptionally admissible even if not all facts have been ascertained that are essential for the ruling, but regardless of the outcome of the taking of evidence the submission cannot be avoided at any rate, i.e. the question of the constitutionality of a statute which is material to the ruling exists in any case (see BVerfGE 47, 146 (167)).

In accordance with these principles, the ruling of the Federal Social Court depends on the validity of § 28.1 sentence 3 no. 1 1st alternative of the Second Book of the Code of Social Law, old version, given that the amount set there always constitutes the basis for the benefits that are to be ultimately granted. Despite the income in the joint household, which is to be taken into consideration in such a manner as to reduce benefits, the amount of the standard benefit fixed by law constitutes a pre-defined calculation value on the needs side. If it changes, this of necessity leads to a situation in joint households – because of the needs shares of the individual members, which change as a result, and because of the provision contained in § 9.2 sentence 3 of the Second Book of the Code of Social Law – in which the benefit claims of all their members have to be re-calculated. According to the view of the Federal Social Court, it is already determined in the appeal proceedings on points of law, regardless of the findings subsequently to be made on the income of the parents and the costs for housing and heating, that a submission to the Federal Constitutional Court cannot be avoided.

2. The reasoning of the Federal Social Court meets the requirements of § 80.2 sentence 1 of the Federal Constitutional Court Act because, in the same manner as the Higher Social Court of Hesse, it demonstrates the materiality to the ruling of the question submitted and has provided substantiated reasoning for its conviction of the unconstitutionality of the provision submitted.

C.

§ 20.2 1st clause,§ 20.3 sentence 1 of the Second Book of the Code of Social Law, old version, and § 28.1 sentence 3 no. 1 1st alternative of the Second Book of the Code of Social Law, old version, in each case in conjunction with § 20.1 of the Second Book of the Code of Social Law, old version, are incompatible with the fundamental right to the guarantee of a subsistence minimum that is in line with human dignity from Article 1.1 of the Basic Law in conjunction with the principle of the social welfare state of Article 20.1 of the Basic Law.

I.

1. The fundamental right to the guarantee of a subsistence minimum that is in line with human dignity emerges from Article 1.1 of the Basic Law in conjunction with Article 20.1 of the Basic Law (see BVerfGE 40, 121 (133); 45, 187 (228); 82, 60 (85); 113, 88 (108-109); judgment of 30 June 2009 – 2 BvE 2/08 et al. –, juris, marginal no. 259). Article 1.1 of the Basic Law establishes this claim. The principle of the social welfare state contained in Article 20.1 of the Basic Law, in turn grants to the legislature the mandate to ensure a subsistence minimum for all that is in line with human dignity, the legislature receiving a margin of appreciation in the unavoidable valuations linked to determining the amount of the subsistence minimum (see BVerfGE 35, 202 (236); 45, 376 (387); 100, 271 (284)). As a guarantee right, this fundamental right from Article 1.1 takes on autonomous significance, in its conjunction with Article 20.1 of the Basic Law, in addition to the right from Article 1.1 of the Basic Law to respect for the dignity of each individual, which has an absolute effect. Fundamentally, it is not subject to the legislature’s disposal and must be honoured; it must however be lent concrete shape, and be regularly updated, by the legislature, which has to orientate the benefits to be paid towards the respective stage of development of the polity and towards the existing conditions of life. It has latitude in bringing about this state of affairs.

a) Article 1.1 of the Basic Law declares human dignity to be inviolable and obliges all state authority to respect and protect it (see BVerfGE 1, 97 (104); 115, 118 (152)). As a fundamental right, the provision is not only a defensive right against encroachments on the part of the state. The state must also protect human dignity in positive terms (see BVerfGE 107, 275 (284); 109, 279 (310)). If a person does not have the material means to guarantee an existence that is in line with human dignity because he or she is unable to obtain it either out of his or her gainful employment, or from own property or by benefits from third parties, the state is obliged within its mandate to protect human dignity and to ensure, in the implementation of its social welfare state mandate, that the material prerequisites for this are at the disposal of the person in need of assistance. A benefit claim of the holder of the fundamental right corresponds to this objective obligation from Article 1.1 of the Basic Law, given that the fundamental right protects the dignity of each individual person (see BVerfGE 87, 209 (228)), and it can only be ensured in such emergency situations by means of material support.

b) The direct constitutional benefit claim to a guarantee of a subsistence minimum that is in line with human dignity only covers those means which are vital to maintain an existence that is in line with human dignity. It guarantees the whole subsistence minimum by a uniform fundamental rights guarantee which encompasses both the physical existence of the individual, that is food, clothing, household goods, housing, heating, hygiene and health (see BVerfGE 120, 125 (155-156)), and ensuring the possibility to maintain inter-human relationships and a minimum of participation in social, cultural and political life, given that humans as persons of necessity exist in social relationships (see BVerfGE 80, 367 (374); 109, 279 (319); also Decisions of the Federal Administrative Court, Entscheidungen des Bundesverwaltungsgerichts – BVerwGE) 87, 212 (214)).

c) The guarantee of a subsistence minimum that is in line with human dignity must be safeguarded by a statutory claim. This is directly demanded by the protection afforded by Article 1.1 of the Basic Law. A person in need of assistance may not be referred to voluntary benefits of the state or of third parties whose provision is not guaranteed by a subjective right of the person in need of assistance. The constitutional guarantee of a subsistence minimum that is in line with human dignity must take place by a parliamentary statute which contains a concrete benefit claim on the part of the citizen towards the competent benefit institution. This is also supported in other constitutional principles. The obligation incumbent on the legislature to make the provisions material to the realisation of the fundamental right itself already emerges from the principles of the rule of law and of democracy (see BVerfGE 108, 282 (311) with further references). This particularly applies if and to the degree that it is a matter of ensuring human dignity and human existence (see BVerfGE 33, 303 (337); 40, 237 (249)). What is more, the margin of appreciation that is afforded to Parliament by the constitution may only develop and take on concrete form in the context of a statute (see BVerfGE 59, 231 (263)). Finally, the establishment of monetary benefit claims also entails a considerable financial impact on public budgets. Such decisions are however reserved for the legislature. The Budget Act is not sufficient for this because the citizen is unable to derive any direct claims from this (see BVerfGE 38, 121 (126)).

The statutory benefit claim must be shaped such that it always covers the total needs necessary for the existence of each individual fundamental right holder (see BVerfGE 87, 153 (172); 91, 93 (112); 99, 246 (261); 120, 125 (155 and 166)). If the legislature does not adequately meet its constitutional obligation to determine the subsistence minimum, the non-constitutional law is unconstitutional to the degree that it displays this shortcoming.

d) The benefit claim from Article 1.1 of the Basic Law is fundamentally provided by the constitution (see BVerfGE 107, 275 (284)). However, the scope of this claim in terms of the types of needs and of the means necessary therefor cannot be directly derived from the constitution (see BVerfGE 91, 93 (111-112)). It depends on society’s views of what is necessary for an existence that is in line with human dignity, and on the concrete circumstances of the person in need of assistance, as well as on the respective economic and technical circumstances, and is to be specifically determined by the legislature in accordance with them (see BVerfGE 115, 118 (153)). The principle of the social welfare state contained in Article 20.1 of the Basic Law obliges the legislature to cover social reality in a manner that is appropriate to the present day and realistic with regard to the guarantee of the subsistence minimum that is in line with human dignity, which for instance is different in a technological information society than was previously the case. The valuations which are necessary here are a matter for the parliamentary legislature. It is obliged to lend concrete form to the benefit claim in fact and in legal consequences. It is fundamentally left up to the legislature to determine whether it ensures the subsistence minimum by means of monetary benefits, benefits in kind or services. It also has a margin of appreciation in determining the scope of the benefits to secure one’s livelihood. This margin encompasses the evaluation of the actual circumstances, just like the valuing assessment of the necessary needs, and also differs in its scope: It is narrower insofar as the legislature lends concrete form to what is needed to ensure a person’s physical existence, and broader when it comes to the nature and scope of the possibility to participate in social life.

e) To lend concrete form to the claim, the legislature has to assess all expenditure that is necessary for one’s existence logically and realistically in transparent and expedient proceedings according to the actual needs (see BVerfGE 66, 214 (223); 68, 143 (153); 82, 60 (88); 99, 246 (260); 112, 268 (280); 120, 125 (155)). To this end, it must initially assess the types of need, as well as the costs to be expended for them, and on this basis must determine the amount of the overall need. The Basic Law does not prescribe to it a specific method for doing so (equally with obligations to protect that emerge from fundamental rights see BVerfGE 46, 160 (164); 96, 56 (64); 115, 118 (160)); it may, rather, itself select the method within the bounds of aptitude and expedience. Deviations from the selected method however require a factual justification.

f) The result thus found is also to be reviewed and refined on an ongoing basis because a person’s elementary requirement for life can in principle only be satisfied at the moment when it arises (see Chamber Decisions of the Federal Constitutional Court (Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK) 5, 237 (241)). The legislature must therefore take measures to react promptly to changes in the economic framework, such as price increases or increases in consumer taxes, in order to ensure at all times that the actual needs are met, in particular if it makes provision for a fixed amount, as in § 20.2 of the Second Book of the Code of Social Law.

2. a) The legislature’s margin of appreciation when it comes to assessing the subsistence minimum corresponds to a reserved review of the provisions of non-constitutional law by the Federal Constitutional Court. Since the Basic Law itself does not permit any precise figure to be put on the claim, the material review as regards the result is restricted to whether the benefits are evidently insufficient (see BVerfGE 82, 60 (91-92)).

b) Within the material bandwidth which is left by this review of evident errors, the fundamental right to the guarantee of a subsistence minimum that is in line with human dignity cannot provide any quantifiable requirements. However, it requires a review of the basis and of the method of the assessment of benefits in terms of whether they do justice to the goal of the fundamental right. The protection of the fundamental right therefore also covers the procedure to ascertain the subsistence minimum because a review of results can only be carried out to a restricted degree by the standard of this fundamental right. In order to ensure the traceability of the extent of the statutory assistance as commensurate with the significance of the fundamental right, as well as to ensure the review of the benefits by the courts, the assessment of the benefits must be clearly justifiable on the basis of reliable figures and plausible methods of calculation.

c) The Federal Constitutional Court hence examines whether the legislature has covered and described the goal to ensure an existence that is in line with human dignity in a manner doing justice to Article 1.1 in conjunction with Article 20.1 of the Basic Law, whether within its margin of appreciation it has selected a calculation procedure that is fundamentally suited to an assessment of the subsistence minimum, whether, in essence, it has completely and correctly ascertained the necessary facts and, finally, whether it kept within the bounds of what is justifiable in all calculation steps with a comprehensible set of figures within this selected procedure and its structural principles.

d) In order to facilitate this constitutional review, there is an obligation for the legislature to disclose the methods and calculations used to determine the subsistence minimum in the legislative procedure. If it fails to do so adequately, because of these shortcomings, the ascertainment of the subsistence minimum is already no longer in compliance with Article 1.1 of the Basic Law in conjunction with Article 20.1 of the Basic Law.

3. Other fundamental rights, such as Article 3.1 of the Basic Law or Article 6.1 of the Basic Law, may not set any further standards for the assessment of the subsistence minimum in social law. It is solely decisive in constitutional terms that the subsistence minimum according to Article 1.1 of the Basic Law in conjunction with Article 20.1 of the Basic Law is adequately covered for each individual person in need of assistance; there is no need of recourse to other fundamental rights here.

II.

According to these principles, the provisions submitted do not comply with the prerequisites of Article 1.1 of the Basic Law in conjunction with Article 20.1 of the Basic Law. By means of the standard benefit paid to secure one’s livelihood according to the Second Book of the Code of Social Law, the legislature has however, fundamentally, correctly defined the goal to guarantee a subsistence minimum that is in line with human dignity (1.). It cannot be established that the total amount of the benefits fixed in § 20.2 1st clause and § 20.3 sentence 1 of the Second Book of the Code of Social Law, old version, as well as in § 28.1 sentence 3 no. 1 1st alternative of the Second Book of the Code of Social Law, old version, is evidently insufficient to ensure a subsistence minimum in line with human dignity (2.). The legislature has also fundamentally found for the basic standard benefit according to § 20.2 1st clause of the Second Book of the Code of Social Law, old version, a viable calculation procedure to assess the subsistence minimum (3.). It however departed from this in various respects in the assessment of the standard benefit of Euro 345, without replacing it with other recognisable or viable criteria (4.). This also leads to the unconstitutionality of the derived benefits according to § 20.3 sentence 1 of the Second Book of the Code of Social Law, old version, (5.) and according to § 28.1 sentence 3 no. 1 1st alternative of the Second Book of the Code of Social Law, old version; the latter also suffers from a complete failure to ascertain the child-specific need (6).

1. With the benefits to secure one’s livelihood as an element of the basic provision for job-seekers regulated in the Second Book of the Code of Social Law, according to the substantive requirements of Article 1.1 of the Basic Law in conjunction with Article 20.1 of the Basic Law the legislature created a subsidiary system of social securing of the subsistence minimum which, as to its objectives, is to do justice to all needs which have to be covered to guarantee an existence that is in line with human dignity.

a) According to the definition contained in § 20.1 sentence 1 of the Second Book of the Code of Social Law, old version, and in § 20.1 of the Second Book of the Code of Social Law, new version, the standard benefit paid to secure one’s livelihood serves both to ensure the physical side of the subsistence minimum and also to cover its social side, given that the standard benefit also includes to a justifiable degree relations with one’s surroundings and participation in cultural life. Other needs that are covered by the constitutional guarantee of the subsistence minimum are met in the Second Book of the Code of Social Law by further claims and benefits in addition to the standard benefit. Securing against the risks of illness and need of long-term care is guaranteed by virtue of the inclusion of recipients of unemployment benefit II and of social benefit in statutory health and long-term care insurance according to § 5.1 no. 2a and § 10 of the Fifth Book of the Code of Social Law, § 20.1 sentence 2 no. 2a and § 25 of the Eleventh Book of the Code of Social Law and the benefits for voluntary and private health and long-term care insurance according to § 26 of the Second Book of the Code of Social Law. Particular additional needs are partially covered according to § 21 of the Second Book of the Code of Social Law. § 22.1 of the Second Book of the Code of Social Law ensures that suitable costs are assumed for housing and heating according to individual needs.

b) § 20.1 sentence 1 of the Second Book of the Code of Social Law, old version, to which § 28.1 sentence 3 no. 1 of the Second Book of the Code of Social Law, old version, makes reference by referring in § 28.1 sentence 2 of the Second Book of the Code of Social Law, old version, to § 19 sentence 1 no. 1 of the Second Book of the Code of Social Law, old version (“benefits to secure one’s livelihood”), also covers in principle all existential requirements of children. The lack of a provision corresponding to § 27.2 of the Twelfth Book of the Code of Social Law, according to which the necessary livelihood of children and juveniles also includes the special needs arising particularly by virtue of their development and their growth, does not mean that child-specific existential needs were not to be taken into account in the Second Book of the Code of Social Law. Rather, child-specific needs can in general also be subsumed under the list contained in § 20.1 sentence 1 of the Second Book of the Code of Social Law, old version, in particular considering the sub-aspect of the “needs of daily life”.

c) It is fundamentally unobjectionable under constitutional law that the Second Book of the Code of Social Law has gone over to covering non-recurrent needs which only occur at irregular intervals, for instance to purchase winter clothing, by increasing the monthly standard benefits in the expectation that the person in need of assistance retains this increased share for non-recurrent needs. The legislature tried to avoid an unconstitutional failure to meet non-recurrent needs with § 23.1 of the Second Book of the Code of Social Law. Accordingly, persons in need of assistance may receive a loan if a non-recurrent need which occurred unexpectedly and is irrefutable cannot be covered by saved funds. The loan is paid off in the ensuing months by the basic provision institution retaining 10 % of the standard benefit. In view of the legislature’s savings-related concept, this temporary monthly reduction of the standard benefit is however not fundamentally objectionable.

2. Standard benefits of a rounded amount of Euro 345, 311 and 207, respectively, applying in the original proceedings, cannot be recognised as evidently insufficient to ensure a subsistence minimum that is in line with human dignity.

a) An evidently insufficient payment cannot be established for the amount of the standard benefit of Euro 345 according to § 20.2 1st clause of the Second Book of the Code of Social Law, old version, because the standard benefit is at least sufficient to ensure the physical side of the subsistence minimum, and the margin of appreciation of the legislature with the social side of the subsistence minimum is broader. Thus, for instance, an investigation carried out by the German Association for Public and Private Welfare reaches the conclusion that the contributions made by § 2.2 of the Standard Rate Ordinance for “Foodstuffs, beverages, tobacco goods”, as well as for “Accommodation services, visits to pubs and restaurants”, can cover the dietary needs of a single person on a full diet (see its recommendations on the granting of allowances for invalid diets in social assistance, 3rd ed., sub III 2 (as per 1 October 2008)). The ruling out of the payment evidently remaining below the required level is confirmed to a certain degree by the fact that the amount of the standard benefit of Euro 345 borrows from the standard rates of the Federal Social Assistance Act which have remained unchallenged by the administrative courts for decades. Also the increase in the monthly benefits to cover non-recurrent needs borrows from the actual circumstances which had developed while the Federal Social Assistance Act was in force. According to the Federal Government’s Fourth Minimum Income Report of 30 November 2001, an average of 16 % of its standard rate was to be estimated for non-recurrent assistance for single persons (see Bundestag printed paper 14/7765, p. 2); with the maximum amount of the standard rate at that time, this led to a rounded amount of Euro 48. This approach and the result thus ascertained cannot be evaluated as being evidently erroneous.

The fact that the legislature set other amounts in other fields of law, for instance with the income limits in the law on legal aid or with the limits of exemption from execution, does not give rise to any major doubts as to the amount of Euro 345 doing justice to needs. The legislature can make different valuations in other areas according to the respective ratio legis , and in doing so also go beyond what it must constitutionally provide to those who are unable to make a living from means of their own. No conclusions can therefore be drawn from other fields of law as to the necessary amount of the benefits to ensure a subsistence minimum that is in line with human dignity.

b) This also applies to the amount of Euro 311 emerging from § 20.3 sentence 1 of the Second Book of the Code of Social Law, old version, for adult partners within a joint household. The legislature was able to presume that expenditure was saved by virtue of joint housekeeping, and that two partners living together thus have a minimum financial need which is less than twice what is needed by a person keeping house alone (see BVerfGK 8, 338 (342)). Since because of living together, one may presume that both partners manage “from one pot”, it is not objectionable that the legislature estimates an equally great need for both partners. An equal division of the reduced joint need, unlike the head-of-household principle previously practiced in social assistance law, at any rate does justice to Article 3.2 of the Basic Law.

c) It can also not be ascertained that the amount of Euro 207 that is uniformly applicable to children until completing the age of 14 is manifestly inadequate to ensure a subsistence minimum that is in line with human dignity.

aa) Having said that, the benefit level for children aged from 7 until completing the age of 14, and hence also for most minor-age plaintiffs of the original proceedings, has fallen as against the law applicable according to the Federal Social Assistance Act. According to § 2.3 of the Standard Rate Ordinance 1990, the standard rate for children of this age was 65 % of the standard rate for the head of the household. This led on 1 July 2003 to a standard rate for this age group of a rounded amount of Euro 193. According to the statistical surveys of the Federal Government’s Fourth Minimum Income Report, towards which the ministry draft of the Bill to the Second Book of the Code of Social Law was orientated, the non-recurrent needs with children accounted for 20 % of the respective standard rate (i.e. a rounded amount of Euro 39 per month from 1 July 2003 onwards) (see Bundestag printed paper 14/7765, p. 2). Under the present system, topping up the standard rate to include non-recurrent needs which now had to be covered by monthly reserves should therefore have led to a standard benefit of roughly Euro 232.

It may however not be concluded from this that the amount of Euro 207 for children in the above age group manifestly does not meet needs. On the basis of the investigations carried out by the German Association for Public and Private Welfare, it is not evident that the amount of Euro 207 is inadequate to cover the physical subsistence minimum, in particular the nutritional needs of children aged from 7 until completing the age of 14. In view of the broad margin of appreciation of the legislature with regard to the question of the scope of benefits to secure one’s subsistence minimum which must facilitate participation in social life, it is therefore not possible to establish that the total amount of Euro 207 manifestly exceeds what is necessary to secure a subsistence minimum.

bb) The standard benefit for children amounting to Euro 207 is also not evidently insufficient merely because this amount does not comply with the consideration in terms of income tax law of expenditure on children according to § 32.6 of the Income Tax Act (Einkommensteuergesetz – EStG). The fiscal deduction of such expenditure both defines and considers the maintenance-law obligations of a taxpayer for his or her children; the constitutional guidelines of fiscal encroachment by the state are contained in Article 3.1 and Article 6.1 and Article 6.2 of the Basic Law. The right to a guarantee of a subsistence minimum that is in line with human dignity, by contrast, is based on Article 1.1 of the Basic Law in conjunction with the principle of the social welfare state of Article 20.1 of the Basic Law; each member of a joint household – including children – has an individual right to this, and it presumes a need that is absolutely necessary. For this reason, expenditure which is to be taken into account in fiscal terms and means-tested social benefits may come to divergent amounts. Provisions of income tax law may also show a promoting character (see for instance on child benefit § 31 sentence 2 of the Income Tax Act) or include additional expenditure that is not necessary for a subsistence minimum.

3. To determine the standard benefit according to § 20.2 1st clause of the Second Book of the Code of Social Law, old version, which forms the basis for the other standard benefit amounts, the legislature has relied on a procedure which is fundamentally suitable to realistically assess the benefits necessary to ensure a subsistence minimum that is in line with human dignity.

aa) The assessment of the standard benefit according to § 20.2 1st clause of the Second Book of the Code of Social Law, old version, follows the procedure which applies to the assessment of the basic standard rate according to social assistance law. § 28.3 of the Twelfth Book of the Code of Social Law and § 2 of the Standard Rate Ordinance 2005 hence form the basis for the assessment of the standard benefit of Euro 345. This emerges from the reference contained in § 20.4 sentence 2 of the Second Book of the Code of Social Law to § 28.3 sentence 5 of the Twelfth Book of the Code of Social Law, and is confirmed in the legislative procedure. The draft Bill referred to an evaluation of the sample survey on income and expenditure 1998, as well as to the Standard Rate Ordinance that was adopted later (see Bundestag printed paper 15/1516, p. 56). The Federal Government referred to the standard rate assessment procedure as a reference system for the determination of the standard benefit (see Bundesrat printed paper 635/06, p. 5). The fact that the details of the proceedings are not provided for in the Second Book of the Code of Social Law itself is constitutionally unobjectionable. The legislature itself took the essential decisions for this by setting the amount of Euro 345 in the Second Book of the Code of Social Law.

bb) The fact that the standard benefit according to § 20.2 1st clause of the Second Book of the Code of Social Law, old version, is in fact based on the procedure to assess the basic standard rate under social assistance law, to which concrete form is lent in § 2 of the Standard Rate Ordinance 2005,, is not called into question by the fact that a draft of the Standard Rate Ordinance 2005 with detailed reasoning was not sent to the participating associations until roughly one month after the issuance of the Fourth Act for Modern Services on the Labour Market, and then was not published in the Bundesrat printed paper 206/04 until March 2004. The sequence might create the impression that the legislature had already committed itself to the final sum of Euro 345 because it was already provided for in the ministry draft of the Bill to the Second Book of the Code of Social Law and because the preliminary draft of the Standard Rate Ordinance reached a similar result. This is however not the point. Insofar as the rates set by the legislature can be constitutionally justified in terms of their outcome on the basis of reliable figures and justifiable valuations, the corresponding provisions are unobjectionable. Moreover, the preliminary draft of the Standard Rate Ordinance of the Federal Ministry of Health and Social Security of 21 July 2003 used the method which was introduced into § 2.2 of the Standard Rate Ordinance 2005. According to the information of the Federal Government in the oral hearing, this draft, as well as the draft Bill to the Second Book of the Code of Social Law of the Federal Ministry of Economics and Labour, was deliberated on in an interdepartmental and cross-party working group, where agreement was reached on the relevant method to determine the basic standard rate and the standard benefit. In fact, a joint procedure was already being applied to determine the standard benefit, given that at the time of the adoption of the Fourth Act for Modern Services on the Labour Market agreement had been reached in this respect as to the procedure that had been adopted to ascertain the standard benefit of Euro 345.

b) The statistical model which is material according to § 28.3 of the Twelfth Book of the Code of Social Law and with § 2 of the Standard Rate Ordinance 2005 is a constitutionally permissible method because it is justifiable to realistically determine the subsistence minimum for a single person.

aa) The legislature laid down the basic rules for the statistical model in § 28.3 sentences 2 and 3 of the Twelfth Book of the Code of Social Law. The provision reads as follows:

“The assessment of the standard rate shall consider the state and development of net incomes, consumer conduct and the cost of living. The basis shall be formed by the actual, statistically calculated consumption expenditure of households in lower income groups.”

The decisive factors of the subsistence minimum are therefore material for the determination of the standard rate: With the cost of living, the expenditure necessary for one’s existence is covered; the orientation towards consumer conduct on a statistical basis is to empirically depict the physical and socio-cultural needs on the expenditure side; the consideration of net income creates a connection to those in gainful employment. The fact of the ascertainment concentrating on the circumstances of the lower income groups is factually appropriate because, in higher income groups, expenditure is increasingly made over and above what is necessary for a subsistence minimum.

The basket-of-goods model applicable in earlier social assistance law until the beginning of the 1990s need not for constitutional reasons be preferred to the consumption-related method of the statistical model. The calculation of the subsistence minimum using a basket of necessary goods and services with an ensuing calculation and valuation of the prices to be paid for them is just as justified as the use of a statistical and consumption method under the premise that the expenditure consumption of lower income groups of the population also makes it recognisable what expenditure is necessary for a subsistence minimum that is in line with human dignity. The statistical and consumption method indeed has the advantage as against the basket of goods method that it does not determine the subsistence minimum which goes beyond physical survival by using individual selected needs items, but measures the expenditure additionally necessary to guarantee a minimum of participation in society, in addition to the physical subsistence minimum, by virtue of actual expenditure conduct.

bb) The applicable statistical model is based on suitable empirical data. The sample survey on income and expenditure, from which the basic standard rate according to § 28.3 sentence 4 of the Twelfth Book of the Code of Social Law and § 2.1 sentence 1 of the Standard Rate Ordinance is derived, provides a realistic basis for ascertainment. The voluntary entries in the household diaries of the respondent reference group which form the basis of the sample survey on income and expenditure are verified by a large number of control questions. In this respect, the sample survey on income and expenditure depicts the consumption conduct of the population in a statistically reliable manner.

The selection of the reference group according to whose expenditure the basic standard rate is assessed is constitutionally unobjectionable. According to § 2.3 of the Standard Rate Ordinance, the consumption expenditure of the lowest 20 % of the households stratified according to their net income (lowest quintile) are to be taken as the basis. One-person households are material according to the system of the Standard Rate Ordinance. This does not emerge directly from the wording of the provision, but from the definition of the basic standard rate as the standard rate for the head of the household or a single person in § 3.1 sentences 2 and 3 of the Standard Rate Ordinance (see Bundesrat printed paper 206/04, p. 10; Spellbrink, in: Eicher/Spellbrink, SGB II , 2nd ed. 2008, § 20 , marginal no. 23). The restriction to one-person households is expedient for the determination of the benefits necessary for a single person. The legislature was also able to presume that the consumption expenditure of this lowest quintile provides a suitable data basis. The Federal Constitutional Court does not have to examine whether the selection of another reference group, such as the second tenth or decile, would have been more appropriate. The selection of the lowest quintile was based on the expedient consideration of keeping the reference group of those on a low income as broad as possible in order to use statistically reliable data. Furthermore, the removal of social assistance beneficiaries which took place avoids circular arguments emerging if one were to make the consumption conduct of assistance recipients itself form the basis of the assessment of need.

According to the outcome of the oral hearing, the legislature was able to justifiably presume that the reference group used as a basis in the evaluation of the sample survey on income and expenditure 1998 could be relied upon to be situated above the social assistance threshold in statistical terms (see on this criterion already BVerwGE 102, 366 (369)). The reservations put forward in this regard by the Higher Social Court of Hesse are not shared by the Senate. The inclusion of social assistance beneficiaries and of persons who cover their expenditure not only from their own income, but also by liquidating assets and from contributions from third parties (“hidden poverty”) in the lowest quintile would in fact falsify the data basis. The Federal Statistical Office however submitted in the oral hearing that those individuals who had largely made their livings from social assistance benefits during the period of three months in which they make entries in the household diaries were consistently excluded. As to the grey area of “hidden poor” households, the Caritas Association, which submitted its own proposal to assess the standard benefit, removing these households from the calculation, was also unable to provide concrete information. It is hence justifiable that the legislature refrained from estimating the share of “hidden poor” households on an empirically insecure basis and by these means setting a higher monthly net income forming the threshold for the determination of the reference group. In line with its obligation to refine its needs assessment system, the legislature admittedly remains obliged to ensure when evaluating future sample surveys on income and expenditure that households whose net income is below the level of the benefits according to the Second Book of the Code of Social Law and the Twelfth Book of the Code of Social Law, including benefits for housing and heating, are removed from the reference group.

cc) It is constitutionally unobjectionable that the expenditure recorded in the individual divisions of the sample survey on income and expenditure of the lowest quintile are not fully incorporated into the assessment of the standard benefit, but as a consumption relevant to the standard benefit, only contribute a certain percentage. However, the respective deduction must be factually justified. The subsistence minimum can for instance be ensured not solely by the standard benefit, but by other social benefits, such as to cover the cost of housing and heating; then it is justified not to consider such expenditure recorded in the sample survey on income and expenditure in the standard benefit. For the same reason, expenditure may also be deducted of which adequate account is taken in other statutes by legal claims to benefits or to exemption from costs.

The valuing decision as to what expenditure is counted among the subsistence minimum is to be taken by the legislature handing down the provision in an expedient, justifiable manner. Reductions in expenditure items in the divisions of the sample survey on income and expenditure require an empirical basis for their justification. The legislature may only regard expenditure which is made by the reference group as not relevant if it is certain that it is covered elsewhere or is not necessary to secure one’s livelihood. Also the amount of a reduction must emerge from the sample survey on income and expenditure or from another reliable survey. An estimate on a sound empirical basis is not ruled out here; “random” estimates however run counter to a procedure of realistic investigation, and hence violate Article 1.1 of the Basic Law in conjunction with the principle of the social welfare state contained in Article 20.1 of the Basic Law. To make it possible to examine whether the valuations and decisions taken by the legislature correspond to the constitutional guarantee of a subsistence minimum that is in line with human dignity, the legislature handing down the provision is subject to the obligation to reason them in a comprehensible manner; this is to be demanded above all if the legislature deviates from a method which it has selected itself.

As a basis for establishing consumption that is relevant to the standard benefit, the statistical model uses the consideration that the individual requirement of a person in need of assistance with regard to individual expenditure items may deviate from average consumption, but that the total amount of the standard benefit makes it possible to compensate for an above-average requirement in one item by a below-average requirement in another. The legislature must hence set the expenditure items and amounts that are relevant to standard benefits in such a way that internal compensation remains possible.

4. The standard benefit of Euro 345 according to § 20.2 1st clause of the Second Book of the Code of Social Law, old version, has not been calculated constitutionally because the structural principles of the statistical model, which the legislature itself selected and made the basis of its assessment of the necessary subsistence minimum, has been deviated from without a factual justification.

a) The consumption set in § 2.2 of the Standard Rate Ordinance 2005 as being relevant to the standard rate, and hence at the same time to the standard benefit, is not based on a tenable evaluation of the sample survey on income and expenditure 1998.

aa) In its divisions 03 (Clothing and shoes), 05 (Furnishings, etc.), 08 (Communication), 09 (Leisure, entertainment and culture) and 12 (Other goods and services) in individual expenditure items (Clothing; furniture and furnishings; telephones, fax machines, answering machines; games, toys and hobby goods; financial services), percentage deductions were made for goods and services that were not relevant to the standard benefit (furs and tailor-made clothes; camping furniture and works of art; fax machines; sports boats and gliders; cost of tax advice) without it being ascertained whether the lowest quintile of single households engaged in such expenditure at all. As conceded by the Federal Government in the oral hearing, it was not possible to derive this from the evaluation of the sample survey on income and expenditure 1998, given that such expenditure was not separately recorded. The legislature handing down the ordinance hence made a “random” estimate of a share of expenditure allegedly not serving to secure the subsistence minimum, and deducted it, without an adequate basis in fact, so that there may be no case in this respect of a plausible ascertainment of consumption which is relevant to the standard benefit.

Even if no adequate detailed data on the individual consumption items were to have been available at the time of the evaluation of the sample survey on income and expenditure 1998, as submitted by the Federal Government, this did not justify making estimates freely. Rather, an insufficient data basis should have caused the legislature to forgo making estimated deductions to comply with the constitutional guarantee of a subsistence minimum that is in line with human dignity. This path was also taken later by the legislature handing down the ordinance when evaluating the sample survey on income and expenditure 2003.

bb) The deductions in division 04 (Housing, water, electricity, gas and other fuels) with the expenditure item “Electricity” (deduction of 15 %) and in division 07 (Transport) in the expenditure item “Replacement parts and accessories for private vehicles” (deduction of 80 %) have also not been viably reasoned. It is possible to derive considerations from the documents which make a reduction in this consumption expenditure fundamentally justifiable. The amount of the reductions is however not empirically documented.

Thus, as becomes clear from later statements (see committee printed paper 16(11)286, p. 10), expenditure on electricity was reduced because electricity is also used for heating in some households, but the requirement for heating is met by benefits according to § 22.1 of the Second Book of the Code of Social Law. Why “the costs for household energy” could be covered with precisely 85 % of the average expenditure on electricity “with economical consumption” (according to the notes in committee printed paper 16(11)286, p. 10), however, does not emerge from the considerations.

The expenditure item “Replacement parts and accessories for private vehicles” encompasses expenditure on motor vehicles and for bicycles. Of this, 80 % were deducted as expenditure on motor vehicles which are not necessary to ensure a subsistence minimum. This is based on the justifiable assessment that a motor vehicle is not necessary to ensure a subsistence minimum that is in line with human dignity. This does not constitute a valuation contradiction to § 12.3 sentence 1 no. 2 of the Second Book of the Code of Social Law, according to which a suitable motor vehicle is not to be considered as constituting part of the property. If, without being constitutionally obliged to do so, the legislature presumes a need of assistance to exist even if certain assets are in the recipient’s possession, this decision does not simultaneously force it to consider the costs of their maintenance in terms of increasing the need. If, by contrast, the legislature wishes to consider the share for bicycles, but to remove that for motor vehicles, it must realistically ascertain both shares. It cannot however be derived from the reasoning for the draft of the Standard Rate Ordinance 2005 on what empirical data the decision is based that the expenditure on privately used motor vehicles accounts for 80 % of this expenditure item. Such a reduction also does not take into consideration the fact that, where the costs of a motor vehicle are saved, the costs of the person in need of assistance for public transport may increase. The deduction is hence not comprehensible and is not justified.

cc) Finally, it is manifest neither from the reasoning of the Standard Rate Ordinance 2005, nor from other statements, why the expenditure recorded in division 10 (Education) in the sample survey on income and expenditure 1998 remained completely unconsidered in the ascertainment of consumption that is relevant to standard benefits. The same applies to the item contained in division 09 (Leisure, entertainment and culture) “Non-school lessons in sport and artistic subjects” (see committee printed paper 16(11)286, pp. 14-15, 22). That the legislature had taken the valuing decision that this expenditure was not necessary to secure one’s livelihood emerges neither from the documents nor from the submission of the Federal Government in the proceedings. It is also not documented that it had presumed that the corresponding requirement was covered by third-party legal rights. The lack of consideration of a whole division of the sample survey on income and expenditure however deviates from the statistical model in a manner which would have required special reasoning.

The consideration subsequently provided by the Federal Government that the covering of needs was a matter for the Länder in this respect because they were said to be responsible for education is not viable. Through the adoption of the Second Book of the Code of Social Law, the Federal legislature has made conclusive use of the concurring legislative competence contained in Article 74.1 no. 7 of the Basic Law. This follows from § 1.1 sentence 2 and § 1.2 no. 2 of the Second Book of the Code of Social Law, according to which the basic provision for job-seekers is to secure one’s livelihood, as well as from § 3.3 sentence 1 2nd clause of the Second Book of the Code of Social Law in the version applicable since 1 August 2006, according to which “benefits provided according to this Book cover the needs of the employable persons in need of assistance and of the persons living with them in a joint household”. Also § 20.1 of the Second Book of the Code of Social Law, and the provisions on the delimitation to the benefits according to the Twelfth Book of the Code of Social Law (§ 5.2, § 28.1 sentence 1 of the Second Book of the Code of Social Law, § 21 of the Twelfth Book of the Code of Social Law), as well as the genesis of the Second Book of the Code of Social Law, show that the Federal legislature wished to completely safeguard the subsistence minimum in the Second Book of the Code of Social Law. The Federation hence bears responsibility for ensuring the whole subsistence minimum that is in line with human dignity. It is not able to withdraw from this responsibility by abstractly referring to concurring Land competences which it has already blocked through its own statute, in order on such grounds to refrain from considering expenditure which, according to its own normative valuations, is necessary to ensure a subsistence minimum that is in line with human dignity.

Nothing else follows from Article 104a.1 of the Basic Law. The Länder have not only legislative, but also administrative competence for schools and education, so that they must pay for the expenditure related to it according to Article 104a.1 of the Basic Law. The provision however only spreads the expenditure burden between the territorial administrative authorities of the Federal state. The Länder have to fund their schools and other educational facilities. However, no obligation under welfare law follows from Article 104a.1 of the Basic Law to equip persons in need of assistance who attend schools and use other educational facilities with the financial means necessary to do so. What is more, only another statutory claim to benefits to secure one’s livelihood would reduce the obligation incumbent on the Federation because the subsistence minimum that is in line with human dignity must be constitutionally guaranteed by legal rights. No such supplementary claims based on Land statutes are manifest.

b) The Second Book of the Code of Social Law and the Standard Rate Ordinance 2005 also derogate in an unjustified manner from the structural principles of the statistical investigation method insofar as they provide that the total amount of the consumption relevant to the standard benefits, calculated according to the sample survey on income and expenditure 1998, is to be extrapolated according to the increase in the current pension value in the period from 1 July 1999 to 1 July 2003 at the level of 1 July 2003, so that because of the lack of a pension adjustment as per 1 July 2004 the standard rate and the standard benefit for the period from 1 January 2005 were not increased.

aa) The orientation in line with developments in the current pension value according to § 68 of the Sixth Book of the Code of Social Law constitutes an inexpedient change of standard. Whilst the statistical calculation method according to § 28.3 sentence 2 of the Twelfth Book of the Code of Social Law uses as a basis net income, consumption conduct and the cost of living, an extrapolation according to the current pension value according to § 68.1 sentence 3 of the Sixth Book of the Code of Social Law is based on the factors of the developments in gross wages and salaries, in the contribution rate to general pensions insurance, and, in the period from 1 July 2005 to 1 July 2013, additionally of the old-age pension share (§ 255e of the Sixth Book of the Code of Social Law), and on a sustainability factor. These factors already do not concur with the reference quantities of net income, consumption and cost of living that are material according to § 28 of the Twelfth Book of the Code of Social Law. The current pension value also does not serve to quantify the benefits necessary to ensure a subsistence minimum that is in line with human dignity and to extrapolate the change in the need annually. Rather, it is intended to steer and slow pension payments in accordance with general economic factors, maintaining the liquidity of the pensions insurance institutions, as well as considering the relationship of active employees to recipients of old-age pensions, and serving to guarantee equitable participation in a pay-as-you-go system. Linking the current pension value to developments in gross wages reflects developments in prosperity within society to a certain degree. Developments in gross wages are however unable to provide any information on changes in the necessary needs to cover the subsistence minimum. The factors named in § 68.1 sentence 3 nos. 2 and 3 of the Sixth Book of the Code of Social Law and in § 255e of the Sixth Book of the Code of Social Law do not refer to the subsistence minimum. However, the factors which determine the consumption conduct of the lowest quintile, which is relevant to the calculation of the standard benefit, namely the available net income and price developments, do not play a role in the determination of the current pension value. This value is hence not suited to realistically extrapolate the subsistence minimum.

bb) Because the sample survey on income and expenditure 1998 only provided information on the benefits necessary to cover the subsistence minimum in 1998, and the results of the sample survey on income and expenditure 2003 were not yet available at the time of the adoption of the Fourth Act for Modern Services on the Labour Market, it was constitutionally unobjectionable to use another method to extrapolate the results of the evaluation of the sample survey on income and expenditure 1998 to the time of the entry into force of the Second Book of the Code of Social Law. This however does not justify using as a basis the developments in the current pension value, which is not suitable to determine a subsistence minimum. Rather, other, more expedient adjustment mechanisms are available which can reflect the development in needs between two sample surveys on income and expenditure in a manner that is more in line with the criteria of the standard benefit determination.

For instance, an extrapolation using price developments in the expenditure items from which the consumption is composed that is relevant to standard benefits would be more compatible with the statistical model. This method was used by the German Association for Public and Private Welfare when introducing the statistical model as per 1 July 1990. Even if the concentration on the actual expenditure conduct of the lowest quintile is lost here, the fundamental concept of the statistical model is continued in this respect. General price increases with goods and services will lead to an increase in the costs of the lowest quintile of those on an income to cover their subsistence minimum.

Information on statistical changes in consumption conduct could also be provided by the data from the continuous household budget surveys of the Statistical Offices in Germany. 8,000 households nationwide are surveyed in the context of the continuous household budget surveys, amongst other things on their income and expenditure; 2,000 households each keep a household diary in three consecutive months similar to the collection of the sample survey on income and expenditure. These data of the continuous household budget surveys could even provide structurally similar information to the sample survey on income and expenditure to extrapolate the standard benefit.

5. Calculation of the standard benefit according to § 20.2 1st clause of the Second Book of the Code of Social Law, old version, not meeting the constitutional requirements continues to have an effect in the derived standard benefit according to § 20.3 sentence 1 of the Second Book of the Code of Social Law, old version, for partners living together in a joint household, with the consequence that this amount of Euro 311 also does not comply with Article 1.1 of the Basic Law in conjunction with Article 20.1 of the Basic Law.

The presumption made by the legislature that the need to secure a subsistence minimum for two partners totals 180 % of the corresponding needs of a single person can however rely on an adequate empirical basis. This amount is based on the modified calculus of differences by the German Association for Public and Private Welfare, on which the provision of § 2.3 of the Standard Rate Ordinance 1990 was based. The German Association calculated this value by selecting as a reference group spouses without children with a disposable net income that is above the social assistance threshold, taking for them the consumption relevant to benefits in line with the procedure applying to a single person, i.e. it only took account of the individual expenditure items in the individual divisions of the sample survey on income and expenditure that were also considered with a single person, and then formed the difference between the amounts for spouses and for single persons. This method is suitable to determine the subsistence minimum of partners living in a joint household without children.

6. The social benefit for children of Euro 207 according to § 28.1 sentence 3 no. 1 1st alternative of the Second Book of the Code of Social Law, old version, derived from the standard benefit according to § 20.2 1st clause of the Second Book of the Code of Social Law, old version, also does not meet the requirements of Article 1.1 of the Basic Law in conjunction with Article 20.1 of the Basic Law because it is derived from the standard benefit of Euro 345 already objected to. Moreover, the provision that social benefit for children until completing the age of 14 is 60 % of the standard benefit for a single adult is not based on a justifiable method to determine the subsistence minimum of a child until completing the age of 14.

a) The legislature did not ascertain the subsistence minimum of a minor-age child living with his or her parents in a domestic community either for the Second Book of the Code of Social Law or for the Standard Rate Ordinance 2005 although everyday experiences already indicate a special child- and age-specific need. Children are not small adults. Their need which must be covered in order to ensure a subsistence minimum that is in line with human dignity must be orientated in line with child development phases and towards what is necessary for the development of a child’s personality. The legislature omitted to carry out any investigations of this. The deduction of 40 % which it carried out as against the standard benefit for a single person is set freely with no empirical and methodical basis.

aa) An additional need is to be anticipated above all with school-age children. Necessary expenditure to comply with school obligations is part of their need in line with the subsistence minimum. Without covering these costs, children in need of assistance are threatened by being excluded from chances in life because they cannot successfully attend school without purchasing the necessary school material, such as school books, exercise books or calculators. The danger exists with school-age children whose parents draw benefits according to the Second Book of the Code of Social Law that their development will be compromised if they do not receive adequate state benefits, restricting their future capability to support themselves by their own efforts. This is not compatible with Article 1.1 of the Basic Law in conjunction with the principle of the social welfare state contained in Article 20.1 of the Basic Law.

bb) The reference to the OECD scale in the reasoning of the Standard Rate Ordinance (see Bundesrat printed paper 206/04, pp. 10-11) is not sufficient to justify that the Second Book of the Code of Social Law only sub-divides children in need of assistance into two age groups until completing the age of 14 and from 14 to completing the age of 18 and differentiates the benefits accordingly. The age group allocation of the OECD scale is only used as a distribution scheme in order to attribute a household income to individual household members and to carry out poverty calculations in an international comparison (see Strengmann-Kuhn, Zeitschrift für Sozialreform – ZSR 2006, pp. 439 (441-442)). However, the OECD scale does not provide any information on the needs of children in different age groups. It says nothing about which benefits are necessary to ensure the subsistence minimum of a child that is in line with human dignity, and especially not why the needs of children until completing the age of 14 should be 60 % of the needs of a single person.

cc) The reference to the survey of Münnich/Krebs “Ausgaben für Kinder in Deutschland – Berechnungen auf der Grundlage der Einkommens- und Verbrauchsstichprobe 1998 ” (Wirtschaft und Statistik 2002, pp. 1080 et seq.) as reasoning for the shares of 60 % and 80 % for children until completing the age of 14, on the one hand, and until completing the age of 18, on the other, fails for several reasons. Firstly, the study itself places children in three age groups (below 6; 6 to 12; 12 to 18; see Münnich/Krebs, loc. cit., pp. 1090-1091). Secondly, it cannot be derived from the study that children aged from 14 until completing the age of 18 cause one-third greater expenditure than younger children. Even the more general statement that older children cause one-third greater expenditure than younger children is not borne out by the study. It rather finds that the expenditure on the private consumption of a child generally increases in line with age, in fact that it rises by more than one-third if one compares children below 6 (1st age group) and children between 12 and 18 (3rd age group) with single parents with one child, and by almost half with couples who have one child (see Münnich/Krebs, loc. it., pp. 1089 and 1091). The study also does not deal at all with the subsistence-related needs of children. It investigates the expenditure of all income levels and stresses that higher expenditure in households with older children is frequently caused by the fact that, because of their longer work experience, their parents as a rule have higher incomes than the parents of small children (see Münnich/Krebs, loc. cit., p. 1092).

dd) The estimate of a value of 60 % of the standard benefit in social benefit for children can also not be justified with the consideration that this value borrowed from § 2.3 of the Standard Rate Ordinance 1990, but considered the practical experience from its application, according to which the difference between the benefits for smaller and larger children were considered to be too great and the cost saving achieved by joint housekeeping not to have been adequately taken into account in the past.

For the derogation from § 2.3 of the Standard Rate Ordinance 1990, which was based in turn on the modified calculus of differences of the German Association for Public and Private Welfare, the Second Book of the Code of Social Law and the Standard Rate Ordinance 2005 were not able to rely on an empirical foundation. No investigation of the needs of smaller and larger children had taken place. It would be particularly necessary to justify the formation of a uniform age group of children until completing the age of 14, given that the needs of a school-age child in puberty manifestly differ from the needs of a baby or of a small child. What is more, the fact that the legislature for instance distinguishes in maintenance law between children up to the age of 6 and children from the beginning of the age of 7 (see § 1612a.1 sentence 3 of the Civil Code (Bürgerliches Gesetzbuch – BGB), new version, § 1612a.3 sentence 1 of the Civil Code, old version, and § 2.1 sentence 1 of the Act on Advance Maintenance Payments (Unterhaltsvorschussgesetz – UnterhVG)), gives reason to query the formation of a uniform age group until completing the age of 14.

Above all, an age-specific need for children who attend school is to be included. As was already stated, the competence of the Länder for schools and education does not obviate the need to consider these needs under welfare law. The competence of the Länder moreover relates to the staffing of and material expenditure on school as an institution, and not to the individual need of a school pupil who is in need of assistance. The Federal legislature could only refrain from granting corresponding benefits if they were substituted by claims under Land law and granted to children in need of assistance. Then, it would certainly be possible for an institution-related granting of benefits by the Länder , for instance by assuming the costs for the purchase of learning materials or by offering free additional tuition, to make a sensible concept of assistance suitable to youths, guaranteeing that the actual needs are covered. As long and as far as this is not the case, however, the Federal legislature, which intended with the Second Book of the Code of Social Law to create a benefit system which completely guarantees the subsistence minimum, must ensure that this additional need of a school child is adequately covered with social benefit.

It would certainly have been possible to realistically ascertain the existential needs of a child at the time of the creation of the Second Book of the Code of Social Law. The modified calculus of differences, on which § 2.3 of the Standard Rate Ordinance 1990 was based, already included the consumption conduct of married couples with one child in the assessment that was made on the basis of the statistical model. This method could have been refined in order to take account of the child-specific needs. Had it been applied, the legislature would have had sufficient time to meet its obligation to calculate the needs of a child realistically. Later developments prove that it would have been possible to carry out a quick, realistic calculation of the child-specific needs on the basis of data and methods available at that time. The competent Federal Ministry of Labour and Social Affairs, for instance, developed a method to determine the standard benefit for children according to the statistical model for § 74 of the Second Book of the Code of Social Law. It solved the problem that the sample survey on income and expenditure only provides household-related data, but that Article 1.1 of the Basic Law in conjunction with Article 20.1 of the Basic Law requires an individual calculation of the necessary benefits, by distributing the statistical household expenditure, where it was categorised as relevant to standard benefits, among parents and children according to a distribution scheme which was already available in 2002. The distribution scheme was developed for the study entitled “Ausgaben für Kinder in Deutschland – Berechnungen auf der Grundlage der Einkommens- und Verbrauchsstichprobe 1998 ” and published at the end of 2002 (see Münnich/Krebs, Wirtschaft und Statistik 2002, pp. 1080 (1083 et seq.)). It is not evident why the draft of the Fourth Act for Modern Services on the Labour Market could not have used this distribution scheme to determine standard rates for children from the data of the sample survey on income and expenditure 1998 and could not have made a calculation corresponding to that which was carried out at the end of 2008 on the basis of the results of the sample survey on income and expenditure 2003. Above all the speed at which the special evaluation of the sample survey on income and expenditure 2003 took place at the end of 2008 proves that it could already have been carried out in 2003.

III.

The violations of the constitution have in the meantime been remedied neither by the evaluation of the sample survey on income and expenditure 2003 and the new determination of the consumption relevant to the standard rate in § 2.2 of the Standard Rate Ordinance 2007 (1.), nor by §§ 24a and 74 of the Second Book of the Code of Social Law, which came into force in mid-2009 (2.).

1. a) The Standard Rate Ordinance 2007 now forgoes in divisions 03 (Clothing and shoes), 08 (Communication) and 09 (Leisure, entertainment and culture) the reduction of expenditure items which are evaluated as being relevant to standard rates, and takes 100 % of them into account (see committee printed paper 16(11)286, pp. 9-10, 13 et seq.). Deductions estimated “at random” hence no longer occur. Also, a distribution of the expenditure in division 07 (Transport) for bicycles on the one hand and motor vehicles on the other makes it dispensable to carry out an estimated deduction for spare parts and motor vehicle accessories (see committee printed paper 16(11)286, p. 13). However, the reduction in expenditure on a motor vehicle continues to neglect the fact that this leads to additional expenditure on the use of local public transport which is not contained in the consumption sample, and is hence not taken into account. Furthermore, the deductions that were already complained of when determining the consumption which is relevant to standard benefits in § 2.2 of the Standard Rate Ordinance 2005 are retained in divisions 04 (Housing, energy and home maintenance), 05 (Interior furnishings, household appliances and household goods) and 12 (Other goods and services) (see on this II. 4. a) aa) to bb) above) (see committee printed paper 16(11)286, pp. 10 et seq., 16), and division 10 (Education) are still entirely left out of the consideration without there being any reason for this.

b) According to the evaluation of the sample survey on income and expenditure 2003, there was no increase in the basic standard rate because the legislature handing down the ordinance took over the amount of Euro 345 calculated from the sample survey on income and expenditure for 2003 until 30 June 2007 on grounds that the current pension value had not increased since 1 July 2003. Thus, the structural error in the extrapolation of the needs necessary for existence continues which was already associated with the standard benefit according to § 20.2 1st clause of the Second Book of the Code of Social Law, old version, and the basic standard rate which has been in force since 1 January 2005.

2. a) The social benefit for children which was introduced as per 1 July 2009 by § 74 of the Second Book of the Code of Social Law from the beginning of the age of 7 until completing the age of 14, namely 70 % of the standard benefit according to § 20.2 sentence 1 of the Second Book of the Code of Social Law, does not meet the constitutional requirements already because it is derived from the wrongly calculated standard benefit according to § 20.2 sentence 1 of the Second Book of the Code of Social Law. By introducing a third age group, and through the assessment method on which § 74 of the Second Book of the Code of Social Law is based (see II. 6. b) above), the legislature is likely to have come closer to a realistic calculation of the necessary benefits for school-age children. It has however not done justice to the requirements as to the calculation of the child-specific needs because the statutory arrangement borrows from the consumption for an adult single person. The sunset clause contained in § 74 of the Second Book of the Code of Social Law until 31 December 2011 indicates that the legislature itself considered that it had not found a lasting, methodically consistent solution.

b) The provision contained in § 24a of the Second Book of the Code of Social Law does not suit the needs-related system of the Second Book of the Code of Social Law in methodical terms. These benefits for school are contingent on either the school-age child or a parent having a claim to benefits according to the Second Book of the Code of Social Law. The school-related needs themselves may therefore not give rise to a need of assistance according to the Second Book of the Code of Social Law. As the Federal Government made it clear in the oral hearing, § 24a of the Second Book of the Code of Social Law is based on the idea that the school-related needs are not part of the subsistence minimum of a child to be ensured by benefits according to the Second Book of the Code of Social Law. As has already been stated, this is however not compatible with Article 1.1 of the Basic Law in conjunction with Article 20.1 of the Basic Law. What is more, the legislature has not empirically ascertained the necessary school-related needs of a child when adopting § 24a of the Second Book of the Code of Social Law. Neither the reasoning of the draft Family Services Act, nor the statement of the Federal Government, indicate how the amount of Euro 100 per year is composed; it was obviously estimated freely.

IV.

It is also incompatible with Article 1.1 of the Basic Law in conjunction with Article 20.1 of the Basic Law that a provision is missing in the Second Book of the Code of Social Law which provides for a claim to benefits to ensure covering a subsistence minimum that is in line with human dignity which is irrefutable, recurrent and not merely a single instance. Such a claim is necessary for the needs which are not already covered by §§ 20 et seq. of the Second Book of the Code of Social Law because the income and consumption statistics on which the standard benefit is based only reflect the average requirements in customary needs situations, but not special needs going over and above this because of atypical needs.

1. The granting of a standard benefit as a fixed amount is in principle permissible. When systemising mass manifestations, the legislature may make generalising, globalising arrangements (see BVerfGE 87, 234 (255-256); 100, 59 (90); 195 (205)). This also applies to benefits to ensure a subsistence minimum that is in line with human dignity. Having said that, Article 1.1 of the Basic Law, which protects the human dignity of each individual without exception, demands that the subsistence minimum is ensured in each individual case. The person in need of assistance who is provided with a lump sum can determine its use in detail himself or herself and compensate for a need that is greater than the statistically calculated average in one area of life by lower expenditure in another. He or she may indeed be expected to do so. That the total is composed of statistically recorded expenditure in the individual divisions of the sample survey on income and expenditure does not mean that each person in need of assistance must always have the individual expenditure items and amounts at their disposal without restriction. Rather, it is a feature of the statistical model that the individual needs of a person in need of assistance may derogate from the statistical average case. The expenditure items and amounts which are relevant to standard benefits are conceived from the outset as abstract calculation values which do not have to be exactly correct for each person in need of assistance, but are only to guarantee in total a subsistence minimum that is in line with human dignity. If the statistical model is applied in line with the constitutional prerequisites and the lump sum in particular has been determined such that various needs can be balanced out (see on this above all II. 3. b) cc)), the person in need of assistance may as a rule organise his or her individual consumption conduct in such a way as to manage on the fixed rate; in case of special need, he or she will, above all, have to resort to the potential for saving up that is contained in the standard benefit.

2. a) According to its conception, a lump sum standard benefit may however only cover the average needs. The fixed amount calculated according to the statistical model relies on a sample survey on income and expenditure which only reflects the expenditure made in the statistical mean of the reference group. Needs occurring in special cases of a nature that is not recorded or which is untypical in its scope are not authoritatively identified by the statistics. The standard benefit cannot therefore cover them. Article 1.1 of the Basic Law in conjunction with Article 20.1 of the Basic Law is however also required to cover a need which is irrefutable, recurrent and not merely a single instance if this is necessary in individual cases for a subsistence minimum that is in line with human dignity.

b) The totality of the provisions contained in the Second Book of the Code of Social Law however also permits as a rule to cover individual, special needs. It is however not capable of this without exception. Firstly, the benefits provided in addition to the fixed amount in the Second Book of the Code of Social Law only cover limited needs, but not all of those which occur, which in their nature are not taken into account by the standard benefit. Thus, § 21 of the Second Book of the Code of Social Law only covers certain exhaustively listed needs (see BSGE 100, 83 (91 marginal no. 43)). By granting a loan according to § 23.1 of the Second Book of the Code of Social Law, in turn, only temporary peaks of special needs may be compensated for. The granting of a loan is, by contrast, unsuitable to cover a lasting, special need (see also BSGE 97, 242 (248-249 marginal no. 20)). Also § 73 of the Twelfth Book of the Code of Social Law, in the interpretation which it has been given by the case-law of the Federal Social Court, offers no guarantee that all atypical needs are taken into account. The Federal Social Court has so far only accepted needs justifying the application of § 73 of the Twelfth Book of the Code of Social Law for costs which are incurred by a divorced parent to exercise his or her right of access to children living far away (see BSGE 97, 242 (249 et seq., marginal nos. 21 et seq.)). Moreover, it is contentious in the case-law and in the literature whether and in which cases additional benefits can be considered according to § 73 of the Twelfth Book of the Code of Social Law (see Gerenkamp/Kroker, Neue Zeitschrift für Sozialrecht – NZS 2008, pp. 28 (29); Münder, NZS 2008, pp. 617 (620); see also A. I. 4. b) above). The Second Book of the Code of Social Law therefore does not contain a claim of the person in need of assistance to an atypical need outside the standard benefit of § 20 of the Second Book of the Code of Social Law and the named additional assistance.

Secondly, the standard benefit provided by § 20 of the Second Book of the Code of Social Law is unable to cover the special need which is irrefutable, recurrent and not merely a single instance which, by its nature, is taken into account, but only at an average level. If a greater, above-average need occurs in special situations, the standard benefit proves to be inadequate. Here too, non-recurrent or short-term peaks in need may be met by a loan according to § 23.1 of the Second Book of the Code of Social Law. This is however no longer possible with a long-term, lasting need. For this reason, in addition to the benefits provided for in §§ 20 et seq. of the Second Book of the Code of Social Law an additional claim to benefits is still required in cases of need which is irrefutable, recurrent and special, and not merely a single instance, to cover a subsistence minimum that is in line with human dignity. It only occurs if the need is so great that the total amount of the benefits granted to the person in need of assistance – including the benefits of third parties and taking account of potential savings of the person in need of assistance – no longer guarantees a subsistence minimum that is in line with human dignity. In view of its narrowly defined, strict prerequisites, this additional claim is likely to arise in rare cases only.

Because of this gap in the cover of the subsistence minimum necessary for life, the legislature has to provide a hardship arrangement in the shape of a claim to assistance to cover this special need for those eligible for benefits according to § 7 of the Second Book of the Code of Social Law.

D.

I.

1. The provisions that have been submitted on the amount of the standard benefit according to § 20.2 1st clause and § 20.3 sentence 1 and § 28.1 sentence 3 no. 1 1st alternative of the Second Book of the Code of Social Law, old version, are to be declared incompatible with the Basic Law (see § 82.1 in conjunction with § 79.1 and § 31.2 sentence 2 of the Federal Constitutional Court Act). A declaration of nullity (see § 82.1 in conjunction with § 78 of the Federal Constitutional Court Act) would lead to there being no statutory basis whatever for the granting of benefits to ensure the subsistence minimum in line with human dignity which is necessary according to Article 1.1 of the Basic Law in conjunction with Article 20.1 of the Basic Law, and no person in need of assistance could receive benefits because of the statutory reservation ordered in § 31 of Book I of the Code of Social Law and prescribed by the constitution (see C. I. 1. c)). This would create a situation which would be even further removed from the constitutional order than the previous one (see BVerfGE 99, 216 (244); 119, 331 (382-383) with further references). What is more, the legislature has several possibilities at its disposal to remedy the violation that has been ascertained against Article 1.1 of the Basic Law in conjunction with Article 20.1 of the Basic Law (see BVerfGE 120, 125 (167); 121, 317 (373), in each case with further references).

Since it is not possible to establish that the standard benefit amounts fixed by law are evidently insufficient, the legislature is not directly obliged under constitutional law to set higher benefits. It must, rather, implement a procedure to realistically ascertain the benefits needed in line with needs which are required to ensure a subsistence minimum that is in line with human dignity and in line with the indicated constitutional prerequisites and entrench its outcome in law as a benefit claim.

Because of the legislature’s discretion regarding its scope for action, the Federal Constitutional Court is not empowered to determine a specific amount of benefit on its own on the basis of its own assessments and evaluations. The unconstitutional provisions hence remain applicable until new provisions are adopted by the legislature.

2. a) In the interest of legal clarity, the above legal consequences according to § 82.1 in conjunction with § 78 sentence 2 of the Federal Constitutional Court Act are also to be announced for the later versions and the successor provisions of the provisions submitted (see BVerfGE 99, 202 (216); 216 (243); 104, 126 (150); 120, 125 (166-167), in each case with further references). The reasons leading to the unconstitutionality of § 20.2 1st clause and § 20.3 sentence 1 and § 28.1 sentence 3 no. 1 1st alternative of the Second Book of the Code of Social Law, old version, apply both to the – only editorially amended – provisions of § 20.2 sentence 1 and§ 20.3 of the Second Book of the Code of Social Law in the version of the Act Amending the Second Book of the Code of Social Law and other Statutes of 24 March 2006 (Federal Law Gazette I p. 558) and of § 28.1 sentence 3 no. 1 1st alternative of the Second Book of the Code of Social Law in the version of the Act to Ensure Employment and Stability in Germany in Germany of 2 March 2009 (Federal Law Gazette I p. 416), and of the provision inserted by the most recently named Act supplementing § 28.1 sentence 3 no. 1 of the Second Book of the Code of Social Law, new version, of § 74 of the Second Book of the Code of Social Law. The same also applies, regardless of their legal nature, to announcements of the amount of the standard benefits according to § 20.2 of the Second Book of the Code of Social Law, old version, and § 20.2 sentence 1 of the Second Book of the Code of Social Law of 1 September 2005 (Federal Law Gazette I p. 2718), of 20 July 2006 (Federal Law Gazette I p. 1702), of 18 June 2007 (Federal Law Gazette I p. 1139), of 26 June 2008 (Federal Law Gazette I p. 1102) and of 17 June 2009 (Federal Law Gazette I p. 1342).

b) The provision contained in § 20.4 sentence 1 of the Second Book of the Code of Social Law on the adjustment of the standard benefit between the sample surveys on income and expenditure taking place every five years according to the change in the current pension value (§ 68 of the Sixth Book of the Code of Social Law), on which the announcements above are based, does not constitute an independent subject-matter of the submissions. According to the statements on C. II. 4. b), the adjustment arrangement is however not compatible with Article 1.1 of the Basic Law in conjunction with Article 20.1 of the Basic Law. The legislature will have to find another adjustment mechanism in order to meet its obligation ensuing from Article 1.1 of the Basic Law in conjunction with Article 20.1 of the Basic Law to continue to review and refine the set benefits in light of changing economic circumstances.

3. Although the definition of the needs covered by the standard benefit in § 20.1 of the Second Book of the Code of Social Law, old version, and in § 20.1 of the Second Book of the Code of Social Law in the version of the Act on Development of the Basic Provision for Job-Seekers of 20 July 2006 (Federal Law Gazette I p. 1706) as such is not constitutionally objectionable (see C. II. 1.), these provisions must be incorporated into the declaration of incompatibility with the Basic Law, given that they help to determine the content of the standard benefit amounts calculated in a manner which is not constitutional (see B. I. 1. a) cc) above).

4. a) The legislature has to newly set the standard benefit in a constitutional procedure by 31 December 2010. This deadline must be sufficient for the implementation of a renewed procedure for the realistic assessment of the benefits to secure a subsistence minimum in view of the life-determining significance of the provision for a very large number of people. If the legislature retains the statistical model, it may fall back on the results of the sample survey on income and expenditure 2008 which will be available in full in the autumn of 2010, according to the information provided by the Federal Statistical Office.

b) Article 1.1 of the Basic Law in conjunction with Article 20.1 of the Basic Law does not oblige the legislature to re-define the benefits retroactively for the time from the entry into force of the Second Book of the Code of Social Law on 1 January 2005. According to the established case-law of the Federal Constitutional Court, the legislature does not have to retroactively remedy a legal state of affairs which is incompatible with the Basic Law if this runs counter to ordered financial and budgetary planning or if the constitutional law was previously not sufficiently clarified and the legislature is to be granted a suitable period to create new provisions for this reason (see BVerfGE 120, 125 (168) with further references). These principles also apply to the disputed benefits to ensure a subsistence minimum that is in line with human dignity. According to which constitutional standards the assessment of such benefits is orientated in detail has not yet been clarified in the case-law of the Federal Constitutional Court. The retroactive re-establishment of any higher benefits for the entire period from 1 January 2005 would also have an unjustifiable fiscal impact because of the provision contained in § 48.1 sentence 2 no. 1 of the Tenth Book of the Code of Social Law. The legislature may refrain from making the new provisions retroactive because, with regard to the impugned provisions, a manifest failure to achieve the subsistence minimum that is in line with human dignity cannot be established, but they are based on an unrealistic procedure of calculating the subsistence minimum alone.

Should the legislature, however, not have complied with its obligation to enact a new provision by 31 December 2010, a law enacted, contrary to this obligation, at a later date, would have to be declared applicable by 1 January 2011.

5. Since the provisions to date initially continue to apply, and the legislature is only obliged to newly set the standard benefit with effect for the future, the original proceedings do not have to remain suspended until new provisions are adopted by the legislature. The same applies to other administrative proceedings and social court proceedings in which the amount of the statutory standard benefit is disputed. Rather, it is established for all benefit periods which are not covered by the legislature’s new provisions that persons in need of assistance cannot receive (higher) benefits because the statutory provisions on the standard benefit amount are incompatible with the Basic Law. The unconstitutionality of the provisions submitted and of their successor provisions is however appropriately to be taken into account with cost rulings in favour of the plaintiffs in need of assistance insofar as this is made possible by the statutory provisions.

II.

The legislature is further obliged to create a provision in the Second Book of the Code of Social Law by 31 December 2010 at the latest ensuring that special needs according to the statements made at C. IV. are covered. Those eligible for benefits according to § 7 of the Second Book of the Code of Social Law with regard to whom such a special need exists must however also receive the necessary benefits in kind or money prior to the adoption of the new provisions. Otherwise, there would be a violation of Article 1.1 of the Basic Law which may not be accepted even on a temporary basis. The provisions which are incompatible with Article 1.1 of the Basic Law in conjunction with Article 20.1 of the Basic Law regarding the amount of the statutory standard benefit remain applicable in accordance with the above statements and do not have to be retroactively substituted. As to the hardship clause which is currently missing in the Second Book of the Code of Social Law to cover these special needs, however, another constitutional evaluation is required. The applicable statutory standard benefit amounts are in general not evidently insufficient to ensure a subsistence minimum that is in line with human dignity; having said that, the current legal situation with a special need leads to a situation in which such a need also continues not to be covered if it is encompassed by the constitutional guarantee of a subsistence minimum that is in line with human dignity. In order to avoid the risk of a violation of Article 1.1 of the Basic Law in conjunction with Article 20.1 of the Basic Law in the transitional period until the introduction of a corresponding hardship clause, the unconstitutional gap for the period from the promulgation of the judgment must be closed by a corresponding order from the Federal Constitutional Court. According to the system of the Second Book of the Code of Social Law, this claim is to be met by the Federation, given that according to § 6.1 sentence 1 no. 1 of the Second Book of the Code of Social Law the benefits of the basic provision for job-seekers, with the exception of the benefits according to § 16a, § 22 and § 23.3 of the Second Book of the Code of Social Law (see § 6.1 sentence 1 no. 2 of the Second Book of the Code of Social Law), are provided by the Federal Employment Agency, and the Federation has to bear the expenditure on this according to § 46.1 sentence 1 of the Second Book of the Code of Social Law.