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Principles and standards Archives: Welfare State

Judgement of the Federal Constitutional Court, 1 BvL 10/10

Year: 2012 (Date of Decision: 18 July, 2012)

Forum, Country: Constitutional Court; Germany

Standards, Rights: Core content; Human dignity; Welfare State; Right to an adequate standard of living; Right to social security; Migrants

Summary Background: The issue at stake was whether the amount of cash benefits for asylum seekers was compatible with the fundamental right to a minimum level of existence as emerging from the right to human dignity (article 1.1 of the Basic Law) read in conjunction with the principle of a social welfare State (article 20.1 of the Basic Law).

Holding: The Court held that the provisions governing the cash benefits in question violate the fundamental right to the guarantee of a dignified minimum existence protected under the German Basic Law [paras. 1 and C.I.1]. This right is universal and applies to both nationals and foreign citizens [para. C.I.1.a]. It includes “…both humans’ physical existence, that is food, clothing, household items, housing, heating, hygiene and health, and guarantees the possibility to maintain interpersonal relationships and a minimal degree of participation in social, cultural and political life, since a human as a person necessarily exists in social context.” [para. C.I.1.b]. The benefits in question were just not enough to live a dignified standard of life.

The Court found that the benefits had not been altered since 1993, despite significant price increases in Germany and stated that adequate benefits have to be established in the particular context of circumstances in Germany. The Basic Law does not allow that needs for a dignified life be calculated at a lower level by referring to the existence levels in the country of origin or in other countries [para. C.I.1.d].

The Court was clear that political considerations must not undermine the principle of existenzminimum, stating that Migration-policy considerations of keeping benefits paid to asylum seekers and refugees low to avoid incentives for migration…may generally not justify any reduction of benefits below the physical and socio-cultural existential minimum existence… Human dignity…may not be modified in light of migration-policy considerations[para. C.II.2.c]. Further, the Constitution did not allow for differentiation among recipients of basic social benefits in accordance to their residence status; the legislature must always be guided by the concrete needs to secure a person’s existence [para. C.I.1.dd].

In addition the Court indicated that it was not clear that a realistic, needs-oriented calculation had been made in determining the amount of benefits. The decision mandates that it must be possible to calculate the amounts in a transparent manner that responds to actual and current needs [para. C.I.1.f].

In conclusion, the Court ordered the legislature to immediately enact new provisions in relation to cash benefits for asylum seekers that would secure them a dignified minimum existence. As an interim measure, the Court also put into place a transitional arrangement for the payment of increased cash benefits [paras. D.1 and 2].

Additional Comments: The decision also refers to the margin of appreciation principle in holding that the State enjoys such a margin in determining the form in which the benefits are given (in cash, kind or services) and the amount of the benefits to secure a minimum existence [para. C.I.1.d].

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Constitutional Case No. 15 of 2010, State Gazette Issue 91, p. 3

Year: 2010 (Date of Decision: 11 November, 2010)

Forum, Country: Constitutional Court; Bulgaria

Standards, Rights: Non-retroactivity; Rule of law; Welfare State; Right to decent work

Summary Background: This case addressed two independent applications, one by the President of Bulgaria and the other by 51 parliamentarians, seeking a declaration that para. 3 of the transitional provisions and articles 176.3 and 224.1 of the Labour Code, and articles 59.5 and 61.2 of the law on state officials, are unconstitutional and contrary to treaties to which Bulgaria is party, including the ICESCR. These provisions amended entitlements to untaken paid leave prior to the provisions’ entry into force.

Holding: The Constitutional Court held that para. 3 of the transitional provisions of the Labour Code and para. 8(a) of the transitional and final provisions of the law on state officials were contrary to articles 57.1, 16, 48.1 and 48.5 of the Constitution of Bulgaria; indent 5 of the Preamble to the Constitution of Bulgaria, articles 2.1 and 24 of the UDHR, and article

1. Every person to whom this Convention applies shall be entitled after one year of continuous service to an annual holiday with pay of at least six working days. 2. Persons, including apprentices, under sixteen years of age shall be entitled after one year of continuous service to an annual holiday with pay of at least twelve working days. 3. The following shall not be included in the annual holiday with pay: (a) public and customary holidays; (b) interruptions of attendance at work due to sickness. 4. National laws or regulations may authorise in special circumstances the division into parts of any part of the annual holiday with pay which exceeds the minimum duration prescribed by this Article. 5. The duration of the annual holiday with pay shall increase with the length of service under conditions to be prescribed by national laws or regulations.
of ILO Convention No. 52, which protect the interdependence of fundamental rights, the right to work, the right to leave and the principle of the welfare state.

The Constitutional Court dismissed the application for unconstitutionality of article 176.3 of the Labour Code and article 59.5 of the law on state officials because the articles’ stipulation that the right to paid annual leave lapses two years after the leave is granted extinguishes the exercise of the right to leave rather than the right itself.

The Constitutional Court found that article 224.1 of the Labour Code and article 61.2 of the law on state officials violated article

A person dismissed for a reason imputable to the employer before he has taken a holiday due to him shall receive in respect of every day of holiday due to him in virtue of this Convention the remuneration provided for in Article 3.
of ILO Convention No. 52, as well as the principle of the rule of law for contradicting articles 48.5 and 176.3 of the Labour Code, in light of the right to work enshrined in articles 16 and 48.1 of the Constitution of Bulgaria.

Additional Comments: The extent to which the Constitutional Court accounts for European and international legal documents is of interest.

Link to Full Case: Summary by the Constitutional Case Law InfoBase of the Venice Commission:

Full judgement (only available in Bulgarian):

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