Ein Krippenplatz für jedes Kind?

Abstract

Abstract “Day-Care for every child?” Since 1 August 2013, section 24 (2) Code of Social Law VIII (Sozialgesetzbuch VIII) grants every child at the age of one and two years a legal entitlement to a place in day-care. This rather laconic piece of legislation leaves many questions unanswered, which have been approached by both jurisprudence and legal practice in the last years. This article highlights the constitutional background of institutional childcare and shows the arising conflict between the basic rights of the child and its parents on the one hand and the burden on municipal budgets on the other hand which is underlying the relevant statutes of the Code of Social Law VIII. Therefore, especially article 6 (1) of the Basic Law (Grundgesetz) is arguing for enabling childcare in the form respectively requested by the parents. On the other hand, potential risks to the constitutional principle of fiscal autonomy of municipalities (kommunale Finanzhoheit) need to be taken into account. Some of the German Laender refused to make compensational payments to the municipalities despite the extension of their tasks caused by section 24 (2) Code of Social Law VIII. This comes into conflict with the principle of related actions (Konnexitätsprinzip), as enshrined in the constitutions of the Laender. In the light of the above, the article then deals with the sub-constitutional entitlements in and surrounding section 24 (2) of the Code of Social Law VIII. Apart from the rights established by section 24 (2)Code of Social Law VIII, the entitlement to cost coverage (section 90 (3) Code of Social Law VIII), the right to repayment of expenses (section 36a (3) Code of Social Law VIII) as well as claims arising from the liability of public authorities (section 839 German Civil Code, article 34 Basic Law) are covered, discussed in the light of their constitutional background and integrated into a coherent interpretative framework.