How are sanctions generally enforced?

Federal Constitutional Court

Press release No. 74/2019 of November 5, 2019

Judgment of November 5, 2019 - 1 BvL 7/16 - Sanctions in social law

The legislature can bind the use of subsistence services to the principle of subordination, i.e. only grant such benefits if people cannot secure their livelihood themselves. He can also impose reasonable obligations to cooperate on recipients of unemployment benefit II who are able to work in order to overcome their own need, and may sanction the violation of such obligations by temporarily withdrawing state benefits. Due to the resulting extraordinary burden, however, strict proportionality requirements apply here; the legislature's otherwise broad scope for assessment is limited here. The longer the regulations are in force and the legislature can thus assess their effects in a well-founded manner, the less it can rely solely on assumptions. It must also be possible for those affected to reasonably create the prerequisites for receiving benefits again after a reduction in benefits.

With this justification, the First Senate of the Federal Constitutional Court did not object to the amount of a reduction in performance of 30% of the relevant standard requirement in the event of a breach of certain obligations to cooperate in its judgment announced today. However, on the basis of the current knowledge, he has declared the sanctions to be incompatible with the Basic Law if the reduction after repeated breaches of duty within one year exceeds the amount of 30% of the relevant standard requirement or even leads to a complete loss of benefits. The sanctions are also incompatible with the Basic Law insofar as the standard requirement in the event of a breach of duty must also be reduced in the event of exceptional hardship and insofar as a rigid duration of three months is specified for all reductions in performance. The Senate has declared the regulations to be applicable until a new regulation is introduced.


1. According to Section 31 (1) SGB II, recipients of unemployment benefit II who are able to work and who do not provide or prove an important reason for their behavior violate their obligations if, despite legal consequences, they do not adhere to the integration agreement, if they refuse to do a reasonable job To take up or continue training, job opportunity or a subsidized employment relationship or prevent their initiation through their behavior or if they do not take a reasonable measure to integrate into work, break off or have given cause for break off. According to Section 31a of the Second Book of the Social Code, the legal consequence of this breach of duty is the reduction of unemployment benefit II in a first stage by 30% of the standard requirement for the employable person entitled to benefits. The second breach of duty reduces the standard requirement by 60%. Unemployment benefit II is completely waived for every further repeated breach of duty. The duration of the reduction is three months according to § 31b SGB II.

2. The responsible job center initially imposed a sanction on the plaintiff in the main proceedings to reduce the relevant standard requirement of 30% after he, as a trained warehouse clerk, had stated to an employer placed with him by the job center that he was not interested in the activity offered in the warehouse but want to apply for the sales area. After the plaintiff had not redeemed an activation and placement voucher for a practical test in the sales area, the job center reduced the standard requirement by 60%. After unsuccessful objection, he brought an action before the social court. The latter suspended the proceedings and, by means of a specific review of the norms, submitted the question to the Federal Constitutional Court as to whether the provisions in Section 31a in conjunction with Section 31 and Section 31b of the Second Book of the Social Code were compatible with the Basic Law.

Key considerations of the Senate:

I. The central requirements for the design of basic security benefits result from the basic right guarantee of a decent subsistence level from Article 1, Paragraph 1 in conjunction with Article 20, Paragraph 1 of the Basic Law. The legislature has room to maneuver when it comes to the rules for securing a decent subsistence level.

Securing one's livelihood independently is not a prerequisite for being entitled to human dignity; Rather, creating the prerequisites for a self-reliant life is part of the state's protective mandate from Article 1, Paragraph 1, Sentence 2 of the Basic Law. However, the Basic Law does not prevent the legislature from tying the use of social services to secure a dignified existence to the subordinate principle, i.e. only granting such services if people cannot secure their livelihood themselves. In this way, the legislature develops the principle of the welfare state in Article 20 (1) of the Basic Law.

The principle of subordination can not only contain an obligation to give priority to currently available funds from income, assets or donations from third parties. The Basic Law also does not preclude the legislative decision to require those who make use of state social security benefits to actively participate in overcoming their need for help or not to allow the need to arise in the first place. Such obligations to cooperate, however, restrict the freedom of action of those affected and must therefore be justified under constitutional law. If the legislature pursues the legitimate goal of people to avoid or overcome their own need for assistance, particularly through gainful employment, with obligations to cooperate, they must also be suitable, necessary and reasonable for this.

The legislature may also make proportionate cooperation obligations enforceable. In the event that people do not fulfill a clearly known and reasonable duty to cooperate without good cause, it can provide onerous sanctions in order to enforce their duty to cooperate in overcoming their own need for help. Such regulations take personal responsibility into account, since those affected have to bear the consequences that the law attaches to their actions.

If the legislature decides in favor of the sanction of a temporary reduction in livelihood benefits, the needy person lacks the means he needs to cover the needs that enable him to live a decent existence. Nevertheless, this can be compatible with the Basic Law if this sanction is aimed at fulfilling duties to cooperate which precisely serve to avoid or overcome existential need. However, strict proportionality requirements apply. The legislature's otherwise wide scope for assessment is narrower when it uses benefits that secure a living. The longer such a sanction regulation is in force, the more sound knowledge is required to prove its suitability, necessity and appropriateness.

When designing the sanctions, further fundamental rights must also be observed if their area of ​​protection is affected.

II.1. The regulations of state social benefits are compatible with the Basic Law, insofar as they oblige employable adults to participate reasonably in order to overcome or prevent their need for assistance.

The legislature is pursuing legitimate goals with the obligations to cooperate regulated in Section 31 (1) SGB II, because they are intended to get people back into work. These obligations are also suitable in the constitutional sense to achieve the goals mentioned. The legislature does not exceed its scope of assessment as to necessity, because it is not evident that less burdensome acts of cooperation or positive incentives could have the same effect. The design of the duty to cooperate is also reasonable. In contrast to employment promotion law, the legislature does not have to standardize occupational protection here, because social security law and basic social security law are structurally different. It is therefore not objectionable that other than previously performed and lower-quality activities are reasonable here. Furthermore, it is not evident that one of the duties to cooperate named in Section 31 (1) SGB II would violate the prohibition of forced labor (Article 12 (2) GG). Under constitutional law it is also not objectionable if the obligation to cooperate relates to gainful employment that does not correspond to one's own career aspirations. In the general reasonableness regulations, which also apply to the duty to cooperate, the fundamental rights protection of the family (Art. 6 GG) is taken into account.

2. The decision of the legislature to enforce legitimate obligations with sanctions is constitutionally unobjectionable, because it is pursuing a legitimate goal. The legal regulations to be checked here, however, do not meet the strict standard of proportionality applicable in this area.

a) The amount of a reduction in performance of 30% of the relevant standard requirement standardized in Section 31a, Paragraph 1, Clause 1 of the Second Book of the Social Code is not constitutionally objectionable according to current knowledge. It is true that the burdensome effect of this sanction is already extraordinary and the demands on its proportionality are correspondingly high. However, the legislature can rely on plausible assumptions, according to which such a reduction in basic social security benefits also contributes to achieving participation due to a deterrent effect, and it can assume that milder means would not be just as effective. However, a reduction in performance of 30% of the relevant standard requirement is only reasonable if the sanction can be waived in a case of exceptional severity and if the reduction does not last for three months regardless of the involvement of the parties concerned.

aa) The reduction in performance in the amount of 30% of the standard requirement regulated in Section 31a, Paragraph 1, Clause 1 of SGB II is ultimately not to be denied that it is generally suitable for achieving its goal of overcoming the need for assistance through cooperation. The legislative scope of assessment is limited because the subsistence level protected by constitutional rights is affected. However, it is sufficient to assume that the sanction contributes to the achievement of its objectives, the constitutional requirements, because the legislature can in any case assume a deterrent ex ante effect of this reduction in performance. In addition, he has taken precautions that strengthen the connection between the obligation to cooperate for the purpose of securing one's own livelihood and the reduction in performance in order to enforce it.

The legislature's assessment that such a sanction is necessary to enforce obligations to cooperate is also still within its scope of assessment. The legislative assumption that milder but equally effective means are not available is sufficiently viable. In any case, it seems plausible that a noticeably stressful reaction can motivate those affected to fulfill their duties, and a lower sanction or positive incentives are generally not an equally effective alternative.

Overall, the regulation does not violate the strict requirements of proportionality in the narrower sense.

bb) On the other hand, the further design of this sanction to enforce legitimate obligations to cooperate does not meet the constitutional requirements. The requirement in Section 31a, Paragraph 1, Clause 1 of Book II of the Social Code, to always reduce the standard requirement in the event of a breach of duty without further examination, is in any case unreasonable. The legislature does not currently ensure that reductions can be omitted if they cause exceptional hardship, in particular because they appear intolerable when viewed as a whole. He must take into account such exceptional situations in which it is actually possible for people to fulfill an obligation to cooperate, but the sanction nevertheless appears unreasonable in specific individual cases due to special circumstances.

cc) After the overall assessment to be made here, it is also unreasonable that the sanction of reducing the standard requirement according to Section 31a, Paragraph 1, Clause 1 of SGB II, regardless of the cooperation it is aimed at, always ends after three months. The permanent withdrawal of benefits exceeds the limits of the legislative scope. Since the legislature has to build on the personal responsibility of those affected if it suspends living services because reasonable cooperation is refused, this is only reasonable if such a sanction ends as soon as the cooperation takes place. Those in need must be able to create the prerequisites for actually receiving the benefit again. If participation is no longer possible, but you declare your willingness to do so seriously and sustainably, the service must in any case be granted again within a reasonable time. Here, too, the legislature's otherwise broad scope for assessment is limited because the temporary reduction in livelihood benefits in the area protected by Article 1, Paragraph 1 in conjunction with Article 20, Paragraph 1 of the Basic Law creates heavy burdens without the existential needs of those affected would have changed at this point.

b) In the case of the first repeated violation of an obligation to cooperate in accordance with Section 31a, Paragraph 1, Sentence 2 of the Second Book of the Social Code, the 60% reduction in the benefits of the relevant standard requirement according to the currently available knowledge is not compatible with the Basic Law. In the overall consideration of the associated serious burden with the objectives of enforcing obligations to cooperate for integration into the labor market, the regulation in its current form cannot be constitutionally justified on the basis of current knowledge about the suitability and necessity of a reduction in performance of this amount. It is not impossible to sanction again if a breach of duty is repeated and the obligation to cooperate can actually only be enforced in this way. However, the reduction in the amount of 60% of the standard requirement is unreasonable, because the burden that arises here extends far into the subsistence level guaranteed by the basic law.

aa) The legislature has taken precautions to prevent people from losing the basics of getting back into work through a sanction. But they do not remove the constitutional concerns. When reducing the relevant standard requirement by 60%, the legislature cannot rely on sound evidence that the desired effects are actually achieved with a sanction of this amount and that negative effects are avoided. The effectiveness of this reduction in performance has not yet been adequately researched. If the suitability can be proven to induce those affected to cooperate in overcoming the need for assistance through gainful employment, the legislature may exceptionally provide for a particularly harsh sanction. The general assumption that this reduction in performance is achieving its purpose is insufficient in view of the serious burden on those affected. Incidentally, it is also doubtful that a repeated breach of duty could not be countered sufficiently effectively by milder means, such as a second sanction of a lesser amount or longer duration.

The doubts about the suitability of this reduction in performance in the amount of 60% of the relevant standard requirement do not eliminate the provision on possible supplementary services in Section 31a, Paragraph 3, Clause 1 of Book II of the Social Code, as their design does not sufficiently take into account the constitutional requirements.

bb) Incidentally, even with a reduction of 60% of the standard requirement according to Section 31a, Paragraph 1, Sentence 2 of the Second Book of the Social Code, the above-mentioned doubts arise that the sanction is mandatory even in clearly unsuitable cases and that there is a rigid three regardless of any involvement Must last for months.

c) The complete elimination of unemployment benefit II according to Section 31a, Paragraph 1, Clause 3 of SGB II is not compatible with the constitutional requirements on the basis of current knowledge. In addition to the cash payments for the relevant standard requirement, the benefits for additional requirements and for accommodation and heating as well as the contributions to statutory health and long-term care insurance are omitted here. Therefore there are already doubts as to whether the basis of willingness to cooperate will be preserved. There are no viable findings from which it can be concluded that a complete elimination of subsistence benefits would be suitable to promote the goal of participating in overcoming one's own need for help and ultimately taking up gainful employment.

aa) There are also considerable reservations about the necessity of this sanction. The legislature's basic scope for assessment is narrow here because the sanction causes a serious burden in the area of ​​human dignity, which is protected by fundamental rights. It has been exceeded because there is no evidence in any way that a loss of subsistence benefits would be necessary in order to achieve the desired goals.It is unclear whether a reduction in the standard requirement benefits in a lower amount, an extension of the reduction period or a partial switch from cash benefits to benefits in kind and benefits in kind would not be just as effective or even more effective because the negative effects of the total sanction would not occur.

bb) Already in view of the lack of suitability and the doubts about the necessity of such an onerous sanction to enforce the duty to cooperate, the overall assessment shows that the complete elimination of all services, even with the limited possibilities of supplementary services, already because of this amount, does not meet the strict requirements of the Proportionality is compatible.

Irrespective of this, even in the event of a complete elimination of unemployment benefit II, the legislature must ensure that the chance of receiving subsistence benefits remains realizable if reasonable obligations to cooperate are fulfilled or, if this is not possible, the serious and sustained willingness to cooperate actually exists. This is different if and as long as beneficiaries have it in their own hands to actually and directly secure their decent livelihood by taking on a reasonable job offered to them by generating income. If such an actually living and reasonable gainful employment is denied for no good reason, although the possibility existed in the proceedings to also bring forward any particularities of the personal situation, a complete withdrawal of benefits can be justified.

III. Until a new regulation comes into force, the reduction in performance of 30% according to Section 31a, Paragraph 1, Clause 1 of SGB II, which is constitutionally unobjectionable in and of itself, remains applicable with the proviso that sanctions do not have to be imposed if this is possible in a specific individual case extraordinary hardship. The statutory regulations for a reduction in performance by 60% and for complete withdrawal of benefits (Section 31a, Paragraph 1, Sentences 2 and 3 of the Second Book of the Social Code) are applicable up to a new regulation with the stipulation that a reduction in performance may not exceed 30% of the relevant standard requirement due to repeated breaches of duty and sanctioning can also be waived here if this would lead to exceptional hardship. Section 31b (1) sentence 3 SGB II on the mandatory three-month duration of the withdrawal of benefits is to be applied up to a new regulation with the restriction that the authority can provide the service again as soon as the obligation to cooperate is fulfilled or those entitled to benefits declare that they are seriously and sustainably ready to fulfill their obligations to comply.