Concept and Legal Foundations of the Subsistence Minimum
Das Subsistence minimum refers in German law to the minimum financial requirement that must be guaranteed to a person to enable a life in dignity, respecting human dignity. It constitutes a central value in numerous areas of law – particularly in tax law, social law, and enforcement law – to protect a person’s basic needs. The term is used both in constitutional law and in statutory regulations.
Constitutional Classification of the Subsistence Minimum
Protection of Human Dignity (Art. 1 GG)
The subsistence minimum is derived directly from the protection of human dignity anchored in the Basic Law (Art. 1 GG). The Federal Constitutional Court has repeatedly emphasized that the subsistence minimum worthy of human dignity is guaranteed by Article 1 Paragraph 1 in conjunction with the social state principle in Article 20 Paragraph 1 GG (BVerfG, Judgment of 9 February 2010 – 1 BvL 1/09). The state is obliged to provide everyone in need with the benefits necessary to secure the subsistence minimum.
Development of Constitutional Protection
The legislator must continuously develop and adapt this entitlement, taking societal, economic, and social developments into account. The constitutionally protected subsistence minimum not only covers food, clothing, and housing, but also a minimum level of participation in social, cultural, and political life.
Subsistence Minimum in Tax Law
Tax-Exempt Subsistence Minimum and Basic Allowance
In tax law, the subsistence minimum is defined by the so-called basic allowance (§ 32a para. 1 EStG). Income that is necessary to cover the subsistence minimum must, according to constitutional jurisprudence, not be subject to income tax. The amount of the basic allowance is based on the regularly published reports on the subsistence minimum by the Federal Government and is adjusted every two years. The legislator is guided by the standard benefits under the Social Code (SGB) Book Twelve (XII) and the average costs for accommodation and heating.
Child-Related Subsistence Minimum
The subsistence minimum for children is also covered by the child tax allowance and child benefit (§ 32 para. 6 EStG, §§ 62 ff. EStG). The tax allowances for children are designed to exempt a child’s subsistence minimum from income tax.
Regular Adjustment
The amount of the tax subsistence minimum in Germany is evaluated every two years in the so-called ‘Report on the Subsistence Minimum for Adults and Children’ and is established in law accordingly.
Subsistence Minimum in Social Law
Social Code and Social Benefits
In social law, the subsistence minimum is mainly defined by basic security for job seekers (SGB II, ‘citizen’s income’) and basic security in old age and in the event of reduced earning capacity (SGB XII). The standard needs are determined annually (§ 28 SGB XII), and expenses for accommodation and heating are also covered if they are reasonable (§ 35 SGB XII).
Scope of the Social Law Subsistence Minimum
The subsistence minimum secured under social law consists of:
- Standard needs (ongoing benefits for food, clothing, personal care, household energy, etc.)
- Costs for accommodation and heating (as far as reasonable)
- Additional needs (e.g., for single parents, expectant mothers, costly diets)
- One-time benefits (e.g., initial furnishing for an apartment or for childbirth)
Assertation and Oversight of Claims
Claims to subsistence minimum benefits can be asserted individually in court. Administrative courts review the adequacy and constitutionality of the standard needs.
Subsistence Minimum in Enforcement Law
Non-attachable Income (§ 850c ZPO)
Within enforcement proceedings, the subsistence minimum protects debtors by ensuring that their income can only be garnished to the extent that the constitutionally guaranteed subsistence minimum is preserved. Details are regulated in § 850c of the Code of Civil Procedure (ZPO), according to which garnishment exemption limits are set, which are regularly adjusted.
Garnishment Protection Account (§ 850k ZPO)
To secure the subsistence minimum, there is also the garnishment protection account (P-account), where a monthly exemption amount is automatically protected. This amount is determined by law and includes additional allowances for maintenance obligations toward children and spouses.
International and European Law References
Subsistence Minimum according to ECJ and ECHR
The right to a subsistence minimum worthy of human dignity is also recognized in European case law – such as under the European Convention on Human Rights (ECHR). The German legal order aligns its provisions with the requirements and guidelines of the Council of Europe as well as recommendations of international organizations for combating poverty.
Significance of the Subsistence Minimum in Family Law
In maintenance law, the subsistence minimum is referred to as the so-called personal allowance . This ensures that a person liable for maintenance retains an amount sufficient to cover their own subsistence minimum after fulfilling maintenance obligations. The amount of the personal allowance is regularly determined, taking into account the social law subsistence minimum (e.g., Düsseldorf Table).
Conclusion: Legal Sources and Ongoing Development
The subsistence minimum is a continuous protective objective under numerous areas of law in Germany and is based on the constitutional principle of human dignity. It has a significant impact on the structuring of tax allowances, social security benefits, garnishment protection mechanisms, and maintenance claims. Its specific amount and legal form are continuously adapted to societal developments as well as legislative and economic changes.
Legal Foundations and Further Literature:
- Basic Law for the Federal Republic of Germany (GG)
- Income Tax Act (EStG)
- Social Code (especially SGB II, SGB XII)
- Code of Civil Procedure (ZPO)
- Reports by the Federal Government on the Subsistence Minimum
Frequently Asked Questions
Is the subsistence minimum taken into account in the garnishment of income?
The subsistence minimum is ensured in the context of wage and salary garnishments by the so-called garnishment exemption limits. These regulate which part of the income is exempt from garnishment and must therefore remain available to cover the essential needs of the person concerned and, if applicable, their dependents. The garnishment exemption limits are regularly determined by the Code of Civil Procedure (§ 850c ZPO) and published as tables. If income exceeds this limit, the excess amount may be garnished by the creditor. Below this limit, income remains untouched to ensure basic needs such as housing, food, clothing, medical care, and minimal participation in social life. Changes in economic circumstances, especially increases in the cost of living, are taken into account by regularly adjusting the garnishment exemption limits.
How does the subsistence minimum affect tax liability?
The tax-related subsistence minimum ensures that every taxpayer in Germany receives at least the necessary means to cover essential needs free of tax. This is implemented via the so-called basic allowance in the Income Tax Act. For the annual income tax calculation, the portion of income equivalent to the tax subsistence minimum remains exempt from taxation. The basic allowance is regularly adjusted for the cost of living and other economic developments. Additionally, for families, child tax allowances or child benefit ensure that the subsistence minimum for children is also taken into account in the tax system.
What role does the subsistence minimum play in maintenance payments?
In maintenance law, the subsistence minimum is decisive for calculating the so-called ‘personal allowance’. The personal allowance defines the amount that a person liable to maintenance must in principle be left with after fulfilling maintenance obligations. The personal allowance is intended to ensure that the liable person can cover their own essential living needs. The exact amount is regularly determined by the Higher Regional Courts (especially the Düsseldorf Table) and adjusted for economic conditions. The personal allowance varies according to the type of maintenance (e.g., child maintenance, spousal maintenance), employment status of the liable person, and their income level.
Is the subsistence minimum relevant in the granting of social benefits?
The subsistence minimum is a central benchmark in the granting of social benefits such as basic security in old age and in the event of reduced earning capacity (SGB XII) or unemployment benefit II (citizen’s income under SGB II). Securing the minimum standard of living worthy of human dignity is a constitutional mandate under Articles 1 and 20 of the Basic Law. The Social Codes base the calculation of standard rates on the necessary needs to ensure the subsistence minimum. Social benefits are always calculated so that they provide at least the socially recognized minimum and are adjusted as necessary, for example due to increased living costs or special individual needs.
What legal mechanisms ensure the regular adjustment of the subsistence minimum?
The regular adjustment of the subsistence minimum is ensured at several levels. In the tax area, the basic allowance is reviewed and adjusted annually by the legislator, taking into account the Federal Government’s subsistence minimum report. In social law, the standard rates for basic security are regularly reviewed and updated based on changes in living costs and statistical data. The garnishment exemption limits are also adjusted on a regular basis to ensure the protection of the subsistence minimum in garnishment cases. In maintenance law as well, personal allowances are adjusted by case law and corresponding tables to account for inflation and cost increases.
Can the subsistence minimum be fallen short of in insolvency proceedings?
In insolvency law, the subsistence minimum is especially protected. During the good conduct period of a personal insolvency, only the attachable portion of income is remitted to the insolvency administrator. The debtor is entitled to keep at least the non-attachable portion of income, i.e., the subsistence minimum under § 850c ZPO. Falling below this minimum is generally not permitted, as the legally stipulated personal allowance also applies in insolvency proceedings. Exceptions apply only when, for example, persons entitled to maintenance require special protection; nevertheless, the debtor must always retain at least the subsistence minimum to secure a life in dignity.
