Nothing but your own Constitution?

The recent report on Germany by the Council of Europe Commissioner for Human Rights Dunja Mijatovic following her visit in late 2023 records an alarming situation regarding social inequality in Germany. The report sharply criticizes Germany for its approach to combat social inequality. Similarly harsh in tone reads the statement by the Federal Government on the Commissioner’s report, claiming the situation not to be as alarming as presented and the German law to have been misinterpreted. What’s it all about?

The Commissioner’s country reports are not legally binding instruments. Since the establishment of the office in 1999, the mandate of the Commissioner has been to ensure greater protection of human rights under the European Convention on Human Rights and other international treaties in Council Member States. The Commissioner’s competences are more general and more limited than, for example, those of the European Committee of Social Rights watching over the (Revised) European Social Charter (which, e.g., may file collective complaints).

Yet, the Commissioner’s country reports are of high political relevance. They publicly and morally address the States for their human rights policy and may provide reason for the Committee of Ministers of the Council of Europe to pursue further measures vis-à-vis the concerned States. However, in the area of social inequality, it is a rather uncommon perspective to think that international law institutions such as the Council of Europe have significant influence on national regulation, whether legally or politically. Social inequality might even be considered an exclusively national issue because European societies are shaped and constituted very differently and States typically surrender even less power to international institutions than regarding civil or political rights of the ‘first generation’ of human rights. Nevertheless, States, including Germany, have recognized, in principle, that certain social standards must apply across borders. The European Social Charter from 1961 was in this sense a central step towards the recognition of second-generation rights by Council Member States.

What does this mean for Germany in light of the Commissioner’s report? Germany has accepted several human rights instruments of the Council of Europe, such as the original and the Revised European Social Charter, and more specifically the European Code of Social Security as well as its Protocol. The report highlights that the German social policy approach to addressing social inequality significantly differs from the human rights perspective of the Commissioner. Human Rights entail obligations for the German welfare state to effectively protect against poverty and guarantee social security standards that arguably go beyond the standards provided by the German Basic Law itself.

In this contribution, we aim to contextualize the Commissioner’s report in factual and legal terms. Moreover, by reflecting on the German approach to combating social inequality, we seek to provide an impetus for both a national constitutional law debate and an international and comparative law debate on a human rights-based approach in welfare states. We focus on poverty and social security as part of social rights, thus on dimensions of social inequality that are directly determined by socio-economic resources. Of course, the topic of social inequality and also the Commissioner’s report are much broader in scope, particularly focusing on children’s rights and the rights of persons with disabilities.

High Level of Poverty and Deficient Provision of Social Benefits

Even though the Commissioner generally recognizes a well-developed welfare system in Germany and the reforms taken with regard to basic social security provision (Bürgergeld), she highlights that, according to figures provided by the Federal Statistical Office, in 2022, one-fifth of the population in Germany was at risk of poverty or social exclusion. The report notes that for someone who is dependent on social benefits, the amount of money provided by the State does not suffice for a life above the poverty line. The Commissioner criticizes the calculation method as complicated and not actually needs-oriented, i.e. not considering the reality of market conditions. Narratives that, for example, basic social security provision should be significantly below the minimum wage income to ensure that employment remains desirable and beneficiaries have an incentive to become independent from social services are persistent. These negatively impact access and claims to social services. Regarding access to social services, she problematizes that State agencies constantly claim a lack of capacity, which is why civil society entities are in high demand. Overall, the Commissioner is particularly concerned about the social situation in Germany, as she notes a massive contrast between the high number of people living in poverty on the one hand and the country’s wealth on the other – especially in comparison to other European countries.

In their statement on the Commissioner’s report, the German authorities comment on figures from the Federal Statistical Office by correcting the Commissioner’s interpretation. According to them, the extent of poverty is in fact lower (14.8% instead of the claimed 21% in 2022), considering only who is actually at risk of poverty and not of social exclusion. Also, for instance, the increased number of people using food banks supposedly does not necessarily prove that poverty has increased. In general, statistics are presented as saying nothing about individual needs. At the same time, the German authorities maintain the statistically revealed average consumption expenditure of low-income households as a reasonable reference when calculating the minimum social benefits. The latter would certainly be needs-oriented and consider real market conditions, as the estimated rate of need is supplemented, for example, with regard to inflation. In this context, German authorities repeatedly refer to the multitude and the expansion of social benefits provided. An issue where the German authorities agree with the Commissioner is the worrying extent of homelessness.

While there is strong disagreement between the Commissioner and the German authorities on the extent of poverty in Germany in view of statistics and the correct calculation method for social benefits, the large gap between poverty and wealth in Germany is an undeniable fact. A series of different studies conducted by the Federal Government itself, as well as major research institutes, clearly show that there is a strikingly persistent inequality of distribution and poverty in Germany. Classist stigmatisation plays a crucial role for unequal access to social benefits, and people in need not claiming these. The calculation of social benefits is at least not consistently needs-oriented or does not consider the full reality of market conditions, as basic and additional payments are not sufficient, for example, to cover the increased expenses due to inflation.

Social Rights Dependent on State Budgeting Policy

One of the main reasons for the persistent high level of social inequality and also the main reference points for remedy from the Commissioner’s and our point of view is the German State’s legal approach to social rights. While in their statement on the report the German authorities mostly object to the Commissioner’s findings on the state of social rights in Germany, they do not directly comment on the human rights-based approach suggested by the Commissioner.

The Commissioner criticizes that in Germany, social rights are not treated as binding human rights but are granted only under the conditionality of enough available State resources despite a notable social budget. The Commissioner highlights that particularly in the context of social rights, Germany continues to debate the protection of human rights largely on the level of its national constitutional order, which is presumed to ensure the same level as international standards. (Ratified) international law, especially in the area of social rights, is substantially not implemented or taken into consideration because it is either assumed not to be applicable or not to be entailing any standards beyond what is already provided in the national legal order. Germany has even declared reservations on international social standards, such as those enshrined in Art. 30 of the Revised European Social Charter (right to protection against poverty and social exclusion) and Art. 31 (right to housing). The Revised European Social Charter was adopted in 1996, but not ratified by Germany until 2021.

The Commissioner acknowledges that the national constitutional order, in particular the case law of the Federal Constitutional Court, ensures the social right to a minimum subsistence level. However, she complains of non-compliance with that standard when it comes to the access to social benefits that secure a life above the poverty line.

Two specific and related issues appear to be the grounds for the Commissioner’s and authorities’ dissent regarding an approach to social inequality. First, there seem to be different understandings of the status of social rights and whether (with this status) they exist in the German legal order. Second, it seems decisive to inquire about the difference and link between the reservation of available resources or proviso of the possible, and the margin of legislative discretion – both concerning welfare states and their required budgeting policy.

The German approach to social inequality and the underlying understanding of social rights result from the fact that the issues of social security and relevant social rights are mainly dealt with under the constitutional principle of the Welfare State (Sozialstaatsprinzip, Art. 20.1 Basic Law). Social rights enshrined in international law are hence implemented under a basic principle of State structure which, unlike subjective rights, must be concretized by legislation granting entitlements to social benefits. Historically, specific social rights were not expressed in the constitutional text. Positive legislative duties to realize specific social rights (Leistungsrechte) that were originally derived from the Constitution are only recognized on an exceptional basis. Particularly due to the prioritization of different political objectives and the distribution of scarce State budget resources, the German legal discourse persistently refers to the margin of legislative discretion, which is considered wide in scope. Here is where the legislator may and does recourse on the proviso of the possible, which in political debates articulates as: Is there enough money for tax-financed social security? Can we afford the welfare state? The Federal Constitutional Court has drawn the line in its case law where human dignity (Art. 1.1 Basic Law) is affected and thus requires the guarantee of the minimum subsistence level. Hence, specifically in conjunction with human dignity it is only this specific social right that is derived from the constitutional principle of the Welfare State. However, it may and must be substantiated by legislation, for instance, as regards the modalities and actual amount. As to the calculation of the amount the Federal Constitutional Court respects the legislator’s budget autonomy, but requires the calculation to be plausible and based on empirical evidence.

The Commissioner’s perspective, however, is different: Social rights may not depend on the availability of resources, as resources are made available by State budgeting policy. Social rights are human rights and have to be guaranteed accordingly. It must be mentioned here that the Commissioner’s understanding of social rights or at least her wording is progressive even from an international human rights law perspective. For instance, according to the case law of the European Court of Human Rights on social rights, States enjoy a wide policy leeway of implementation (e.g., here on the right to housing). Nonetheless, this does not mean that they are not obliged to comply with international human rights. In this sense, the Commissioner most clearly emphasizes the obligations that international human rights impose on States regarding their budgeting policy.

The question that arises is: Is this standard actually covered by the national constitutional order, in particular, the case law of the Federal Constitutional Court on the general minimum subsistence level to which both the Commissioner in her report as well as the German authorities in their statement refer? What more may an international human rights-based approach to social rights indicate for tackling social inequality in Germany, as opposed to the prevalent national social policy-approach?

A Human Rights-Based Approach to the Legislator’s Margin of Discretion

It is notable that in its initial ruling on the general minimum subsistence level based on the Welfare State principle in conjunction with human dignity in 2010, the Federal Constitutional Court did not make any reference to international law. Neither did the Court refer to international human rights law with regard to a guaranteed minimum subsistence level in its 2019 ruling concerning sanctions.

A human rights-based approach may narrow down the legislator’s margin of discretion in the sense that social rights concerning social security must be among the highest priorities in State budgeting policy and the (re-)distribution of State resources. Resources must be made available to realize social rights, especially by providing social benefits that secure a life above the poverty line and making them accessible. In other words: A human rights-based approach sets a value line to the legislator’s recourse on the proviso of possible. This is particularly the case where the guarantee of the minimum subsistence level securing a life above the poverty line is uncertain or jeopardized in the course of political processes.

We invite to debate on such concretization of the legislator’s margin of discretion, that is only touched upon here. It may not only facilitate the legislator to comply with international human rights obligations, but also courts to take under review if the legislator has performed its margin of discretion in compliance with international human rights law. The implementation of international law in the area of social rights would be promoted, and internationally agreed upon social standards would have an actual impact in terms of improving social equality. This is also advisable given that the Federal Constitutional Court has explicitly attributed impact to the European Social Charter within the realm of international law-conform interpretation (e.g., here in 2017).

Apart from these rather structural impulses from the European human rights regime, one remaining option to seek protection from poverty and the guarantee of social rights might be an individual complaint procedure under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, which has not been applied ever since its ratification in 2023.

In sum, the Commissioner’s report adds to other strong international impulses of recent years to reflect on whether international social standards really imply nothing beyond German constitutional standards.