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The exclusion of non-EU citizens from the Land child-raising allowance is unconstitutional
Press Release No. 18/2012 of 08 March 2012
Order of 7 February 2012
1 BvL 14/07
In 1989, the Free State of Bavaria introduced Land (state) child-raising benefit. This is granted immediately following the drawing of federal child-raising benefit and is intended to enable parents to take parental leave for a long period of time and to care for their children themselves. Under the Land Child-Raising Benefit Act (Landeserziehungsgeldgesetz - BayLErzGG) in the version of the year 1995, which is the subject of the present proceedings, Land child-raising benefit was in principle granted for a further twelve months of the child's life after the receipt of federal child-raising benefit, in the amount of 500 German marks per month. Under Article 1.1 sentence 1 no. 5 BayLErzGG, the only provision submitted for review in the present case, the only persons entitled to draw it were those who held the citizenship of a Member State of the European Union or of another contracting party to the Agreement on the European Economic Area.
The plaintiff in the original proceedings is a Polish citizen and petitions for Land child-raising benefit to care for her child, who was born in the year 2000 and therefore before Poland's accession to the European Union. She has lived in Bavaria since 1984 and has repeatedly worked in gainful employment since 1988. Her application for Land child-raising benefit was rejected because by reason of her Polish citizenship she was not entitled to Land child-raising benefit. She instituted proceedings against this before the Social Court. Initially, the Social Court referred the matter to the Bavarian Constitutional Court, which declared that the provision of Article 1.1 sentence 1 no. 5 BayLErzGG was compatible with the Bavarian Constitution. The Social Court then referred the provision to the Federal Constitutional Court for constitutional review because it regards it as incompatible with the principle of equality before the law and the protection of marriage and the family guaranteed by the Basic Law.
The First Senate of the Federal Constitutional Court holds that the provision of Article 1.1 sentence 1 no. 5 BayLErzGG in the version of the year 1995 and also the successive provisions, whose contents are identical, are not compatible with the principle of equality before the law under Article 3.1 of the Basic Law because without a factual reason they exclude from the claim to child-raising benefit all persons who do not have one of the citizenships named there. The legislature must replace the unconstitutional provisions by 31 August 2012 by reformed provisions; failing this, the provisions will become void.
In essence, the decision is based on the following considerations:
1. The requirement of citizenship referred for review does not violate the state's duty to protect and encourage the family, which follows from Article 6.1 and 6.2 of the Basic Law. For the general constitutional requirement to support the parents' function of caring and bringing up the child gives rise to no concrete claims to particular state benefits and thus to no constitutional duty of the Free State of Bavaria to support families by granting child-raising benefit.
2. However, the provision of Article 1.1 sentence 1 no. 5 BayLErzGG violates the principle of equality before the law (Article 3.1 of the Basic Law), because there is no legitimate statutory purpose which could justify the unequal treatment of the foreign citizens not included. The grant of child-raising benefit is aimed above all to enable parents to care for their children themselves by forgoing or limiting gainful employment and in this way to encourage early childhood development. This statutory purpose does not justify the exclusion of benefits contained in the referred provision, since it applies to foreign citizens and their children in the same way as to Germans. The constitutional protection of the family is not restricted to Germans.
Nor can the unequal treatment be justified by the purpose of restricting a form of advancement to persons who will be living permanently in Bavaria, since the criterion of citizenship is neither directed to this purpose nor suitable to give reliable information on the duration of a person's future residence. Since the referred provision differentiates not by origin from other Länder, but by citizenship, it can also not be justified under the aspect of assistance of "people of the Land (Landeskinder)".
The prevention of "bandwagon effects" which might result from persons taking up residence temporarily in Bavaria in order to obtain Bavarian child-raising benefit also fails to stand up to examination as a statutory purpose. For citizenship cannot give reliable information on the duration of residence in Bavaria.
Nor can public-revenue interests justify the discrimination of foreign citizens effected by Article 1.1 sentence 1 no. 5 BayLErzGG. It is admittedly a legitimate purpose to avoid state expenditure, but this cannot in itself justify the unequal treatment of categories of persons. If there is no factual ground of differentiation beyond this, the legislature must if necessary take account of fiscal-policy concerns by restricting the amount or duration of the benefit for all those entitled.
Finally, differentiation by citizenship cannot be justified by the international-law principle of reciprocity if for no other reason than because the provision governing entitlement to benefit in Article 1.1 sentence 1 no. 5 BayLErzGG does not differentiate on the basis of the reciprocal guarantee of corresponding benefits and thus leaves no room for the review of requirements of reciprocity.