Under the Federal Training Assistance Act (BAföG), a monthly needs-based rate of 373 euros applied to students from October 2014 through February 2015. The Federal Administrative Court has ruled that this rate may be unconstitutional. According to the ruling, this regulation violates the constitutional right to equal access to state-funded educational opportunities and the right to a guaranteed education-related minimum standard of living.
The Federal Administrative Court has therefore decided to refer the question of whether the needs-based allowance is compatible with the aforementioned provisions of the Basic Law to the Federal Constitutional Court (BVerfG) for a ruling.
The Case
The plaintiff was enrolled at a public university in Germany during the 2014–2015 winter semester. For the period from October 2014 to February 2015, she received student financial aid in accordance with the provisions of the BAföG, taking her parents’ income into account. The plaintiff challenged the corresponding grant decisions on the grounds that the needs-based rate for students applicable during the period in question was unconstitutionally low. Her lawsuit seeking higher BAföG benefits was unsuccessful before the administrative courts in both the first and second instances.
The Decision
On May 20, 2021, the Federal Administrative Court in Leipzig clarified in this case that children have a legal right to state financial aid for their education and that this aid must not depend on their parents’ financial circumstances. This aid must sufficiently compensate for existing social disparities and guarantee the minimum subsistence level necessary for education. The judges emphasized that, regardless of the actual amount of the grant, the method used to calculate it was opaque and outdated and was therefore incompatible with the right to equal opportunity (Federal Administrative Court, May 20, 2021 – 5 C 11.18).
The court was unable to determine what level the BAföG rates must be set at. The reason: As a specialized court, the Federal Administrative Court is not authorized to determine the unconstitutionality of a parliamentary law on its own. For this reason, it suspended the appeal proceedings and referred the matter to the Federal Constitutional Court (BVerfG) for a ruling. After 50 years of BAföG, the constitutionality of the BAföG needs-based rate is thus being reviewed by the Federal Constitutional Court for the first time.
Take Action Now
Students should now file appeals against their BAföG award notices and then put the proceedings on hold until the Federal Constitutional Court issues its decision. This way, they can maintain their entitlement if the Constitutional Court rules in their favor. However, it is not yet clear when the Federal Constitutional Court will rule on the Federal Administrative Court’s referral.
50 Years of BAföG – (Not) a Reason to Celebrate!
“BAföG was introduced 50 years ago—a milestone on the path to free education across socioeconomic class boundaries. But it hasn’t aged well.” This is the core message from a broad coalition of youth organizations. Together, they aim to draw attention to the disastrous state of BAföG.
The Free Association of Student Bodies (fzs), the Green Youth, the Jusos, the Left Youth (‘solid’), GEW Studis, Ver.di Youth, IG Metall Youth, Junge BAU, Juso university groups, Campusgrün, the Rhineland-Palatinate State Student Council, and the Socialist Youth of Germany. The Falken have formed an alliance to mark the BAföG anniversary. With their new campaign website, bafoeg50.de, and their own petition, they aim to draw attention to the disastrous state of the BAföG.
