Summary:

I.

Pursuant to the Federal Child-Raising Allowance Act, which was in force until 31 December 2006, it was possible to grant a child-raising allowance of (in the end) € 300 per month until the child reached the age of 24 months. Pursuant to the stipulated income limits, however, parents with a higher income were not entitled to this child-raising allowance. By contrast, the Federal Parental Benefit Act (hereinafter: “the Act”), which came into force on 1 January 2007, grants a parental benefit until the child has reached the age of 12 or 14 months. Its amount is in line with the average income of the beneficiary parent over the twelve months preceding the birth, and ranges from at least € 300 to a maximum of € 1,800 per month. Hence, the new Act entailed improvements for parents with higher income who previously did not have access to the child-raising allowance. Because of the shorter drawing period, however, the new Act also brought about a worsening of the situation, in particular for parents who have low or no income. Pursuant to the cut-off date rule contained in § 27.1 of the Act, only parents whose child was born or adopted after 31 December 2006 are entitled to the parental benefit. The provisions on the child-raising allowance continue to apply to children born or adopted before that date.

The applicants, both of whose children were born shortly before the cut-off date, are not entitled to the child-raising allowance because their spouses’ incomes are too high. They consider the cut-off date rule to be unconstitutional, in particular because the legislature did not introduce a transitional arrangement entitling them to the parental benefit.

II.

The Second Chamber of the First Senate of the Federal Constitutional Court does not admit the constitutional complaints for decision since the prerequisites for their admission do not apply. In particular, the applicants’ constitutional rights have not been violated.

In essence, the decisions are based on the following considerations:

The cut-off date rule, which distinguishes between parents whose child was born on or after 1 January 2007 and parents whose child was born before this date, does not violate the general principle of equality (Article 3.1 of the Basic Law). The legislature is free to introduce cut-off date rules on the basis of objective considerations. This applies although any fixed date unavoidably involves certain hardships. A starting point had to be determined for the system change from the child-raising allowance to the parental benefit introduced by the legislature. The time-related and objective link between the statutory right to a benefit and the birth of a child is legitimate in objective terms. As a rule, the date of birth coincides with the start of the ability to live and be to raised, and with the need to provide child-care.

The unequal treatment brought about by the cut-off date rule also does not violate the principle of equality in conjunction with the obligation incumbent on the state to protect marriage and the family (Article 6.1 of the Basic Law). These guarantee parents’ freedom to decide for themselves regarding the manner in which the family lives together and on the form of child-care. Furthermore, they oblige the state to facilitate and promote child-care in the form selected by the parents. Whether the parents of a child born prior to 1 January 2007 are disadvantaged in terms of this freedom by the cut-off date rule is, however, immaterial here. Their unequal treatment also meets heightened requirements as to justification.

Firstly, the cut-off date rule does not leave parents whose child was born prior to 1 January 2007 fully unprotected since the child-raising allowance continues to apply in this respect. The allowance complies as such with the prerequisites of Article 6.1 of the Basic Law, even if the applicants are not  entitled to it because of the income limits.

Secondly, the legislature was permitted to refrain from adopting a transitional arrangement with regard to the anticipated additional administrative effort. For instance, because it is drawn for a longer period, the application of the previous regulations on the child-raising allowance may be advantageous in individual cases in comparison with the application of the parental benefit regulations. In the interest of protecting legitimate expectations, a transitional arrangement might therefore have required that the more advantageous benefit system be identified and applied on a case-by-case basis. Avoiding the considerable administrative effort this would entail constitutes an adequate justification for the cut-off date rule. This particularly applies since parents whose children were born before 1 January 2007 do not suffer a disadvantage in comparison with the previous law because of this, but may draw the child-raising allowance in accordance with this very law.

There is also no unconstitutional unequal treatment of biological parents versus adoptive parents. It is objectively justified in the case of adopted children not to take as a basis the date of birth, but the date when the family commences living together.