CASE OF NIEDZWIECKI v. GERMANY
Violation of Art. 14+8;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Josep Casadevall
8. The applicant was born in 1961. At the time the application was lodged he lived in Erlenbach in Germany. He currently resides in Swidnica in Poland. 9. The applicant immigrated to Germany in February 1987. His request for asylum was rejected. His expulsion was, however, suspended under the agreement of the Home Secretaries of the Länder not to expel Polish nationals (“Ostblockbeschlüsse” der Innenminister der Länder). In November 1989 the applicant obtained a provisional residence permit (Aufenthaltserlaubnis). In January 1991, following an amendment of the Aliens Act, he was issued with a limited residence title for exceptional purposes (Aufenthaltsbefugnis). This residence title was renewed every two years, the last time in January 1995 until January 1997. In April 1997 the applicant obtained an unlimited residence permit (Aufenthaltsberechtigung). 10. In July 1995 the applicant’s daughter was born. 11. On 28 July 1995 the applicant applied to the Aschaffenburg Labour Office (Arbeitsamt) for child benefits according to Section 1 of the Federal Child Benefits Act (Bundeskindergeldgesetz, see relevant domestic law below). 12. On 18 August 1995 the Labour Office dismissed the applicant’s request under Section 1 § 3 of the Child Benefits Act. It noted that the applicant only had a limited residence title for exceptional purposes, and no unlimited residence permit or provisional residence permit, as required under Section 1 § 3. 13. On 12 October 1995 the Federal Labour Office (Bundesanstalt für Arbeit) rejected his objection. 14. The applicant lodged an action with the Würzburg Social Court (Sozialgericht), claiming that he had been residing in Germany since 1987 and that he should, therefore, have the right to child benefits. 15. On 21 April 1997 the Social Court dismissed the applicant’s action regarding child benefits between July 1995 and April 1997. It confirmed that only aliens with an unlimited residence permit or with a provisional residence permit were entitled to the payment of child benefits under Section 1 § 3 of the Child Benefits Act, as in force until 31 December 1995. According to the Social Court, the legislature had only intended to grant child benefits to aliens who were likely to stay in Germany on a permanent basis. Aliens with only a limited residence title for exceptional purposes were, however, not likely to stay. The court further pointed out that this distinction did not violate the German Basic Law. In the present case, the legislature had remained within its wide margin of appreciation in social law matters. 16. On 23 April 1998 the Bavarian Social Court of Appeal (Landessozialgericht) dismissed the applicant’s appeal to the extent that his claims under the Child Benefits Act until 31 December 1995 were concerned. The Court of Appeal confirmed the lower court’s reasoning, noting that the applicant did not have a stable residence permit in 1995, as his limited residence title for exceptional purposes had had to be renewed every two years. Likewise, referring to the wide margin of appreciation of the legislature, it took the view that Section 1 § 3 of the Federal Child Benefits Act was compatible with the Basic Law. In this respect, it considered that until December 1995 families had benefited from child benefits and tax deductions (Kinderfreibetrag) as a system of compensation (dualer Familienlastenausgleich). The applicant and his wife had paid taxes in 1995 but had not obtained child benefits. In the court’s view, this taxation, not the refusal of child benefits, might have violated the Basic Law; however, it was not for the social courts to decide on that matter. 17. On 18 March 1999 the Federal Social Court (Bundessozialgericht) dismissed the applicant’s appeal on points of law. 18. The applicant lodged a constitutional complaint combined with a request for an interim measure. He claimed that the relevant provision of the Federal Child Benefits Act was discriminatory and racist, and violated his right to respect for his family life. In addition, he alleged that the refusal of his request for child benefits infringed the principle of social justice (Sozialstaatsprinzip) laid down in Article 20 § 4 of the Basic Law. 19. On 21 October 1999 the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain his complaint and rejected his request for an interim measure. 20. On 3 July 2001 the Würzburg Social Court decided that it was not competent to deal with the applicant’s claims regarding child benefits for the period after 1 January 1996 and transferred the proceedings to the Nuremberg Tax Court (Finanzgericht). The proceedings before the Tax Court are still pending. 21. Section 1 of the 1994 Federal Child Benefits Act (Bundeskindergeld-gesetz, Federal Gazette - Bundesgesetzblatt 1994-I, S. 168), as in force until 31 December 1995, provided for the payment of child benefits which are financed by the Federation. Section 1, as far as relevant, provided as follows: “(1) Under the provisions of the present Act, anybody is entitled to child benefits for his or her children ..., 1. who has a place of residence (Wohnsitz) or regular residence (gewöhnlicher Aufenthalt) within the scope of the present Act, ... (3) An alien is entitled to a benefit under the present Act, if he has a residence permit or a provisional residence permit. ...” 22. Following a reform of the law on child benefits with effect from 1 January 1996, an equivalent provision on child benefits is to be found in Section 62 § 2 of the Income Tax Act (Einkommenssteuergesetz). 23. By decision of 6 July 2004 (1 BvL 4/97, 1 BvL 5/97, 1 BvL 6/07), the Federal Constitutional Court ruled that section 1 § 3 of the Child Benefits Act in the above cited version was incompatible with the right to equal treatment under Article 3 of the Basic Law. Accordingly, the legislator was ordered to amend the law by 1 January 2006. 24. The Federal Constitutional Court found, in particular, that the different treatment of parents who were and who were not in possession of a stable residence permit lacked sufficient justification. As the granting of child benefits related to the protection of family life under Article 6 § 1 of the Basic Law, very weighty reasons would have to be put forward to justify unequal treatment. Such reasons were not apparent. In so far as the provision was aimed at limiting the granting of child benefits to those aliens who where likely to stay permanently in Germany, the criteria applied were inappropriate to reach that aim. The fact that a person was in possession of a limited residence title did not form a sufficient basis to predict the duration of his or her stay in Germany. The Constitutional Court did not discern any other reasons justifying the unequal treatment.