Climate Protection Decision of the Federal Constitutional Court: Obligations also for the Welfare State?

In its climate protection decision of 24 March 2021, which has often been described as epoch-making, the German Federal Constitutional Court derives from the Basic Law a right of defence against the threat of destruction of our liberal order. The decision is innovative insofar as a threat to fundamental rights is, under certain conditions, equated with an encroachment on fundamental rights. However, can concrete obligations for the welfare state be derived from this future-oriented protection of fundamental rights? Prof. Ulrich Becker explored this question in an essay that has now also been published in English on the Max Planck Law website.

In the discussion about possible consequences of the climate protection decision in terms of social law, the focus is on the financial viability of the social security systems, whereby pension insurance - a permanent construction site of the welfare state - is of particular importance. One demand in this context is to distribute contributions and benefits proportionately among the present and future generations. In contrast, Ulrich Becker holds the opinion that the argument of an impairment of fundamental rights lying in the future cannot be easily transferred to other areas of social law.

The bridge that connects the present to the future in the climate protection decision is built by the irreversibility of the events set in motion. If transferred to social benefit systems, it would have to be claimed that their creation and maintenance also lead to states of irreversibility, Ulrich Becker argues. However, social benefit systems remain man-made institutions that can be changed, albeit often laboriously, whereas climate catastrophes are characterized precisely by the interaction between human actions and nature.

Moreover, there is already a constitutional basis for demands for "generationally just" reforms, which the climate protection decision at most strengthens but does not extend. It is "equality over time," which can be understood as a concrete manifestation of intergenerational justice. Constitutional law provides principles for this intergenerational equity in social insurance, but it does not contain a roadmap. There are different ways to reform social insurance in general and pension insurance in particular, and thus to change future benefits and burdens. Therefore, the best solution must continue to be fought for in future parliamentary debates.

Original publication in German:
Becker, Ulrich: Der Klimaschutz, das BVerfG und die Zukunft des Sozialstaats, in: NJW-Spezial, issue 8/2022, pp. 1222-1227.

The article is based on a lecture given on the occasion of the German Jurists' Day, which can be viewed >> here an (from minute 27:10, in German).