Church-run daycare centres in North Rhine-Westphalia (NRW) may receive lower public subsidies than other recognised independent providers. The Federal Administrative Court (BVerwG Ref.: 5 C 7.22 of 22 February 2024) has now ruled that the unequal treatment is justified as church providers are economically more efficient due to their church tax income.

A church-run provider of a daycare centre in Wuppertal had filed a lawsuit because it only received a subsidy of 88% of the flat-rate costs per child in accordance with the version of the NRW Child Education Act (KiBiz) dated 8 July 2016, while the subsidy for other independent providers was 91%. Accordingly, the church provider also had to make a higher contribution of 12 per cent. However, the action was not successful before the Administrative Court Düsseldorf, the Higher Administrative Court of Münster or the Federal Administrative Court.

The Federal Administrative Court sees neither discrimination on the basis of faith or religious belief nor a violation of the general principle of equality (Art. 3 GG) in the different amount of the subsidy. Rather, it considers the unequal treatment to be proportionate and justified. According to the law (§ 20 Para. 1 KiBiz), the providers are to be used according to their respective economic capacity and this is a legitimate and constitutional objective, according to the court. According to the court, the church providers also fulfil their own tasks by operating daycare centres. It was therefore also reasonable for the churches to make a higher contribution to daycare centre funding.

„Due to the decline in church tax revenue, the question will arise as to whether and for how long the argument of abstractly increased financial strength can (still) be convincing,“ says lawyer Dr Beate Schulte zu Sodingen. The current KiBiz state law also continues to provide for staggered, albeit slightly reduced, own contributions of 10.3 per cent for church providers and 7.8 per cent for other recognised independent providers.

Your contacts for questions relating to childcare and school law in our practice are the lawyers Dr Beate Schulte zu Sodingen, Franziska Wilke and Charlotte Blech.