NIEDZWIECKI v. GERMANY
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
The applicant, Mr Jaroslaw Niedzwiecki, is a Polish national who was born in 1961 and lives in Świdnica in Poland. The applicant entered Germany in 1987. Until January 1997 he was in possession of a limited residence title for exceptional purposes (Aufenthaltsbefugnis). In April 1997 he obtained an unlimited residence permit (Aufenthaltsberechtigung). The applicant’s daughter was born in July 1995. On 14 December 1995 he requested a child-raising allowance for the first year of the child’s life under the Child-raising Allowance Act (Bundeserziehungsgeldgesetz). For the applicant the benefits under that Act amounted to 600 German marks (DEM) (approximately 306.00 euros (EUR)) per month. On 20 December 1995 the Würzburg Office for Care and Family Promotion rejected his request. The applicant filed an administrative objection on 17 January 1996, which the Bavarian Regional Office for Care and Family Promotion dismissed on 27 March 1996. It held that the applicant did not meet the requirements of the Child-raising Allowance Act as he was not a German national and he did not have the necessary unlimited residence permit. According to the relevant provisions of the Child-raising Allowance Act, the limited residence title for exceptional purposes did not suffice for the allowance. On 21 April 1996 the applicant lodged an action with the Würzburg Social Court (Sozialgericht) arguing that the pertinent provisions of the Child-raising Allowance Act discriminated against foreign nationals. In connection with a different set of proceeding (concerning family allowance), the applicant lodged a constitutional complaint against, inter alia, the pertinent provisions of the Child-raising Allowance Act, arguing that those provisions discriminated against foreigners. On 2 June 1997, the Federal Constitutional Court refused to admit the constitutional complaint for failure to exhaust effective remedies. On 18 July 1996 the applicant requested a child-raising allowance for the second year of his daughter’s life. On 26 February 1997 the Würzburg Office for Care and Family Promotion rejected the request. On 26 May 1997 it amended the decision and granted the applicant the requested allowance from 9 April 1997 onwards as on that day the applicant was in the possession of an unlimited residence permit. The applicant filed an administrative objection against the refusal of the authorities to grant the allowance also for the period prior to 9 April 1997. On 17 June 1997 the Regional Office for Care and Family Promotion rejected the objection. On 9 July 1997 the applicant extended his action before the Social Court to include his claim for the second year of his daughter’s life concerning the period before 9 April 1997. On 11 November 1997 the Würzburg Social Court rejected the applicant’s action in its entirety, holding that the applicant did not meet the requirements of the Child-raising Allowance Act. It also held that that Act’s requirement for foreign nationals to be in possession of a residence permit was not discriminatory. On 10 December 1997 the applicant lodged an appeal against the judgment. On 28 March 2001 the Bavarian Social Court of Appeal (Landessozialgericht) allowed an ancillary request concerning a cost decision but dismissed the appeal on the merits in its entirety. On 5 September 2001 the applicant lodged an appeal on points of law against that judgment. On 14 April 2003 the defendant acknowledged that the applicant’s claim on the merits was justified in so far as it concerned the two-day period of 7 and 8 April 1997. On 24 April 2003 the Federal Social Court (Bundessozialgericht) dismissed the appeal on points of law. On 30 June 2003 the applicant lodged a constitutional complaint to the Federal Constitutional Court (Bundesverfassungsgericht). On 6 July 2004 the Federal Constitutional Court held, in proceedings by which the applicant was not directly concerned, that the pertinent provisions of the Child-raising Allowance Act violated the right to equal treatment enshrined in the German Basic Law (case no. 1 BvR 2515/95). It added that if the Child-raising Allowance Act was not amended until 1 January 2006, the law prior to the amendment of the Child-raising Allowance Act in 1993 should be applied to cases that were not subject to a final decision. On the same day, the Federal Constitutional Court also declared, for the same reasons, the provisions of the Federal Child Benefits Act (Bundeskindergeldgesetz) to be unconstitutional (case nos. 1 BvL 4/97, 5/97, and 6/97), also allowing for a transitional period until 1 January 2006. In relation to the applicant’s constitutional complaint the Federal Constitutional Court, on 17 March 2005, rescinded the judgment of the Federal Social Court referring to its earlier decision of 6 July 2004. It remitted the case to the Federal Social Court and decided that the Federal Social Court was to adjourn the case until the impugned provisions of the Child-raising Allowance Act had been amended. The Federal Constitutional Court added, in line with its earlier decision, that if the Act was not amended until 1 January 2006, the Federal Social Court should apply the law prior to the amendment of the Child-raising Allowance Act in 1993. On 18 September 2006 the defendant acknowledged the applicant’s claim; on 1 December 2006 it also offered to pay interest on the outstanding amount. On 13 December 2006 the German legislator amended the Child-raising Allowance Act to allow foreigners with limited residence titles for exceptional purposes, whose proceedings had not yet ended with a final decision, to benefit from the child-raising allowance. This amendment entered into force retroactively on 1 January 2006. On 10 May 2007 the Federal Social Court allowed the applicant’s appeal on points of law. The Federal Social Court noted that the applicant had not accepted the defendant’s acknowledgment. It ordered the defendant to pay the agreed child-raising allowance plus the accrued interest.