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A case of hardship is an atypical situation that deviates significantly from the normal case provided by law and therefore makes exceptional regulations or decisions appear justified. The term hardship (or hardship ) is an indefinite, generally worded legal term that must be specified in the application of the law in individual cases. In contrast to discretionary decisions , the application of the law is subject to unqualified judicial review.


By virtue of its constitutional mandate to shape it, the legislature can basically freely decide which actual circumstances it connects certain legal consequences and how it defines groups of people to whom it wishes to grant certain benefits. In the case of mass phenomena, in particular, he is authorized to generalize, typify and generalize, even if the hardships associated with it only affect a relatively small number of people and do not burden them very intensely. A violation of the principle of equality exists only if one group of norm addressees is treated differently compared to another group, although there are no objectively differences between the two groups that could justify unequal treatment. A certain group of people should be favored with hardship regulations. They represent a legal expression of the constitutional principle of proportionality. Hardship regulations are intended to ensure that a result is achieved even in exceptional cases, which cannot be foreseen in detail due to their atypical design and therefore cannot be grasped with the abstract characteristics of the legal language is equivalent to the standard result in its basic aim.

Typical hardship regulations

In particular, benefit laws (such as the Social Code ( SGB), Federal Social Assistance Act BSHG), socially oriented provisions (such as the tenancy law of the BGB , BAföG ) or personal protection norms ( hardship commission in immigration law ) describe norms or rules that are predominantly applicable. Either they provide for exceptional situations that deviate from this from the outset, or these are created by case law . These exceptional situations are then referred to as hardship regulations.

Hardship regulations in laws

From the large number of legal regulations, four are selected to demonstrate hardship regulations using their example:

  • In the area of ​​the facts mentioned in § 1 d of the ordinance on § 40 SGB ​​XII ( standard rate ordinance ), atypical circumstances may exist that deviate significantly from the typical view of the standard rate calculation. Then a hardship case can be accepted. Thus, according to § 28 SGB ​​XII, the entire requirement "of the necessary livelihood outside of facilities with the exception of services for accommodation and heating and the special needs according to §§ 30 to 34 is provided according to standard rates" . However, the legislature has recognized that this standard regulation can lead to inadequate results in individual cases. For this reason, the legislature has provided in sentence 2 of this provision that the requirements can be determined differently, "if in individual cases a requirement ... inevitably deviates significantly in its amount from an average requirement" .
  • Even after the rental agreement has been effectively terminated by the landlord, the tenant can demand a continuation of the rental agreement. Tenancy law expressly grants him such a legal claim through the so-called hardship or social clause of § 574 BGB. But there must be exceptional reasons. As a rule, the landlord only has to continue the tenancy for an appropriate period of time - and not for an indefinite period of time. For the period to be granted to the tenant, the specific personal circumstances of the tenant must be taken into account in individual cases. After a justified termination, the tenant can demand a further continuation of the lease for a sufficient period of time if, for example, he is unable to obtain reasonable replacement living space ( Section 574 (2) BGB). However, it is not reasonable to expect a new apartment if it is more expensive, is not in the same residential area or is not as large as the previous one. The various hardship reasons within the meaning of Section 574 (1) BGB include, for example, a continuation of the tenancy for predominantly hardship reasons after the landlord's termination for personal use, if the optimal care and care of relatives of the tenant can only be handled from the location of the rented apartment.
  • According to § 6 Paragraph 1 Clause 1 No. 1 RGebStV , the obligation to pay broadcasting fees u. a. Recipient exempt from social assistance; The prerequisites for the exemption must be proven by submitting the corresponding notification (Section 6 (2) RGebStV). The case law previously dealt with this problem has taken the view that the hardship provision of Section 6 (3) RGebStV can only cover those facts that have inadvertently been ignored by the legislature. If the legislature had known about their effects and their comparability with the cases regulated there, it would have regulated them in paragraph 1 in the same way. It is therefore incompatible with the purpose of the law if the exemption regulations were circumvented by extensive application of the hardship regulation. In particular, a low income alone cannot lead to the abolished possibility of an exemption due to low income being reintroduced via the hardship regulation.
  • Insured persons are largely exempted from their own contributions for dentures if they are unreasonably burdened. An unreasonable burden exists if your monthly gross income in 2013 does not exceed the limit of 1,078 euros (with one relative 1,482.25 euros, with two relatives 1,751.75 euros and with three relatives 2,021.25 euros). Insured persons who are subject to the hardship regulation therefore receive double the fixed allowance for standard dental prosthesis care , even if they have not kept the bonus booklet completely ( Section 55 (2) SGB ​​V ). In the case of standard care, the insured person does not have to pay his own contribution in these cases. The dental prosthesis costs are covered in full by the health insurance company. The hardship limit is not rigid, but provides for a sliding clause. The health insurance company reimburses the insured person the amount by which the simple fixed allowance - without bonus - exceeds three times the difference between the gross monthly income for living expenses and the income limit ("hardship limit") that is decisive for granting the double fixed allowance. This additional contribution to the costs does not exceed an amount equal to twice the fixed allowance and no more than the costs actually incurred ( Section 55 (3) SGB V). The remaining balance is to be paid by the insured person.

Hardship decisions by case law

In particular, the Federal Administrative Court (BVerwG) as the highest instance for disputes under public law and the Federal Social Court (BSG) as the highest instance of social justice have issued numerous rulings on hardship issues in the past. The administrative and social courts have developed an extensive tradition of jurisdiction with regard to hardship offenses. In established case law, the BVerwG subsumes under the term hardship an atypical situation that must result from the content of the regulation in question in connection with the particularities of the individual case. An objective hardness must be ascertainable. However, this does not already exist when a decision is subjectively perceived by the affected citizen as too harsh. Furthermore, the BVerwG assumes that hardship within the meaning of Section 26 (1) sentence 2 BSHG a. F. only exists if the consequences of the exclusion of claims went beyond the extent that is regularly associated with the refusal of assistance for an education and that was consciously accepted by the legislature. The BSG also refers to atypical issues that deviate from the standard regulation. Hardship can only be assumed if there is atypicality, "that is, there must be an exceptional situation that the legislature could not include in the enumerative list of Section 90 (2) SGB ​​XII ".

Particular hardship

The term hardship is increased by the case law with the addition of “special” or unreasonable hardship . Here it must also be checked whether the application of a regulation would hit the person concerned particularly hard in their specific situation. A “special case of hardship” therefore exists if the rule applies to someone excessively harshly and unreasonably or to a large extent inappropriately. According to established jurisprudence, a special case of hardship only exists if there are exceptional, serious, atypical and, if possible, circumstances that are not self-inflicted or if these would cause another emergency.

In addition, a distinction is made between “severe hardship”, which is a further increase in “unreasonable hardship” (see § 1568a BGB).


If the laws expressly provide for hardship regulations and even list individual facts, the hardship regulation must not lead to a circumvention or expansion of the system of exemptions. This prohibits the interpretation of laws, because the legislature has indicated by enumerating that it does not allow the scope to be extended to similar, unmentioned cases ("enumeratio ergo limitatio"; see loophole ).

If the legislature has only specified a standard, the case law is required to concretize this on the basis of case law in a restrictive manner through analogous hardship decisions. Laws with a mass effect in particular rely on generalized and blanket regulations. In the interest of practicability and administrative simplification, generalized regulations are then created, which of course do not produce individual justice in every case, but are only intended to achieve type justice.

The hardship regulation is intended to compensate for individual disadvantages or weaknesses that arise or would be aggravated by the application of the normative facts. The approval of hardship regulations on the one hand enables individual peculiarities to be taken into account, but on the other hand increases the administrative workload and promotes case law. However, these burdens are dictated by the constitutional principle of equality and the welfare state.

Web links

Individual evidence

  1. BVerfG, decision of April 4, 2001, Az. 2 BvL 7/98, 318 - GDR service times.
  2. BVerfG, judgment of August 24, 2005, Az. 1 BvR 309/03, full text .
  3. BVerfG, judgment of March 31, 2006, Az. 1 BvR 1750/01 full text ; BVerwG, judgment of July 25, 2001, Az. 6 C 8.00, 43.
  4. BVerwG, judgment of May 22, 1992, Az. 8 C 50.90, 206.
  5. ^ AG Lübeck , judgment of September 26, 2002, Az. 27 C 1621/02, short version .
  6. a b c BVerwG, judgment of June 18, 2008, Az. 6 B 1.08, full text .
  7. cf. BVerwG, judgment of July 25, 2001, Az. 6 C 8.00
  8. BVerwG, judgment of October 14, 1993, Az. 5 C 16.91
  9. BSG, judgment of March 18, 2008, Az.B8 / 9b SO 9/06 R, full text .
  10. BSG, judgment of September 6, 2007, Az. B 14 / 7b AS 28/06 R, full text .