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FOURTH
SECTION
CASE OF OKPISZ v. GERMANY
(Application
no. 59140/00)
JUDGMENT
STRASBOURG
25 October
2005
FINAL
15/02/2006
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Okpisz v. Germany,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Mr J. Casadevall, President,
Mr G.
Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr J.
Borrego Borrego,
Ms L. Mijović,
Ms R. Jaeger,
judges,
and Mr M. O'Boyle, Section Registrar,
Having
deliberated in private on 4 October 2005,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 59140/00) against the Federal
Republic of Germany lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Polish nationals, Mr
Zbigniew and Ms Halina Okpisz (“the applicants”), on 15
February 2000.
- The
German Government (“the Government”) were represented by
their Agent, Mr K. Stoltenberg, Ministerialdirigent, and,
subsequently, Mrs A. Wittling-Vogel, Ministerialrätin,
of the Federal Ministry of Justice.
- The
applicants alleged that the refusal of child benefits from January
1994 onwards amounted to discrimination.
- The
application was allocated to the Fourth Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the
Chamber that would consider the case (Article 27 § 1 of the
Convention) was constituted as provided in Rule 26 § 1.
- By
a decision of 17 June 2003 the Court declared the application
admissible.
- On
1 November 2004 the Court changed the composition of its Sections
(Rule 25 § 1). This case was assigned to the newly composed
Fourth Section (Rule 52 § 1).
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1946 and 1947 respectively and live in
Dortmund in Germany.
- In
1985, the applicants, a married couple, immigrated to Germany with
their daughter, born in 1979. Their son, born in 1970, joined them in
1986.
- In
1987 their request to be recognised as immigrants of German origin
(Vertriebene) was rejected. The applicants' request to reopen
the proceedings was rejected on 5 November 1992 by the Münster
Administrative Court of Appeal (Oberverwaltungsgericht). The
same day the applicants were issued with residence titles for
exceptional purposes (Aufenthaltsbefugnis) which have been
regularly renewed.
- On
27 December 1993 the Dortmund Labour Office (Arbeitsamt)
informed the first applicant, who had received child benefits
(Kindergeld) since 1986, that as from 1 January 1994 the child
benefits would no longer be paid following a change in legislation.
The office noted that according to Section 1 § 3 of the Federal
Child Benefits Act (Bundeskindergeldgesetz, see relevant
domestic law below), as amended and in force as from 1 January
1994, a foreigner was only entitled to child benefits if in
possession of a residence permit
(Aufenthaltsberechtigung)
or a provisional residence permit (Aufenthaltserlaubnis).
The office noted that this condition was not met in the applicants'
case.
- On
25 March 1994 the Federal Labour Office (Bundesanstalt für
Arbeit) rejected the first applicant's objection.
- The
first applicant, assisted by counsel, lodged an action with the
Dortmund Social Court (Sozialgericht) with the aim to be
granted child benefits from January 1994 onwards. He claimed that he
and his family had been residing in Germany since 1985 and had been
paying tax and social contributions. He should, therefore, continue
to be entitled to the child benefits.
- On
27 March 1995 the Social Court dismissed the first applicant's
action. It confirmed that only aliens with an unlimited or a
provisional residence permit were entitled to the payment of child
benefits. The new legislation had only intended to grant child
benefits to aliens living in Germany on a permanent basis, whereas
aliens with only a limited residence title for exceptional purposes
were not likely to stay. The court further pointed out that this
distinction did not violate the German Basic Law as had been stated
by the Federal Social Court in several judgments since 1992. As to
the special protection of the family provided under Article 6 of the
German Basic Law, the court held that this did not prevent the State
from subjecting the payment of child benefits to the type of the
residence title.
- On
14 June 1995 the first applicant, assisted by counsel, lodged an
appeal with the North Rhine-Westphalia Social Court of Appeal
(Landessozialgericht).
- On
2 May 1997 the Social Court of Appeal informed the first applicant
that it had referred five pilot cases to the Federal Constitutional
Court (Bundesverfassungsgericht) for review of Section 1 §
3 of the Child Benefits Acts, and asked him whether he would agree to
a suspension of his appeal proceedings until a decision had been
given by the Constitutional Court. On 20 May 1997 the Social Court of
Appeal, having obtained the parties' agreement, ordered the
suspension of the proceedings.
- By
decision of 6 July 2004 in the pilot cases (1 BvL 4/97, 1 BvL 5/97,
1 BvL 6/97), the Federal Constitutional Court ruled that section 1 §
3 of the Child Benefits Act as effective from January 1994 until
December 1995 was incompatible with the right to equal treatment
under Article 3 § 1 of the Basic Law. Accordingly, the
legislator was ordered to amend the law by 1 January 2006.
- 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.
- On
27 December 2004, following the first applicant's request, the Social
Court of Appeal resumed the proceedings. On 9 March 2005 the Social
Court of Appeal, with the parties' consent, once again suspended
proceedings pending the amendment of the applicable legislation.
- In
2000 the first applicant lodged a motion with the Munster Tax Court
(Finanzgericht) with the aim to be granted child benefits from
January 1996 onwards according to the provisions of the Income Tax
Act (Einkommensteuergesetz, see relevant domestic law below).
On 6 May 2004 the Tax Court rejected the motion. The first applicant
did not lodge an appeal.
II. RELEVANT DOMESTIC LAW
- Section
1 of the 1994 Federal Child Benefits Act
(Bundeskindergeld-gesetz,
Federal Gazette - Bundesgesetzblatt 1994-I, S. 168),
as in force from 1 January 1994 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. ...”
- 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).
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
- The
Government invited the Court to strike this application out of the
Court's list of cases pursuant to Article 37 § 1 (c) of the
Convention. They pointed out that the proceedings, which form the
subject matter of this application, were still pending before the
Social Court of Appeal and had been suspended until the legislator
amended the applicable legislation. The Social Court of Appeal, when
giving its decision, would take into account the reasoning of the
Federal Constitutional Court in the pilot cases.
- The
Court notes that, subsequent to its decision on the admissibility of
the present complaint, the Federal Constitutional Court – in
separate proceedings – ruled that section 1 § 3 of the
Child Benefits Act violated the right to equal treatment as
guaranteed by Article 3 § 1 of the Basic Law and ordered the
legislator to amend the impugned provision by 1 January 2006 (see
paragraph 17 above). The proceedings concerning the applicants'
claims are suspended pending the amendment of the applicable
legislation.
- The
Court reiterates that it has found in its admissibility decision that
the applicants were absolved from exhausting domestic remedies in the
present case. The Court further notes that the proceedings before the
Constitutional Court do not directly affect the applicants' case and
that the prospective new legislation – which might improve the
applicants' legal position with respect to their claims for child
benefits – has not yet been passed. Accordingly, the subject
matter of the application has not yet been resolved (see Article 37 §
1 (b) of the Convention). Nor does the Court find any other reason
which could justify to discontinue the examination of the application
pursuant to Article 37 § 1 (c) and thus proceeds to the
examination of its merits.
II. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH
ARTICLE 8 OF THE CONVENTION
- The
applicants complained that the German
authorities' refusal of child benefits as from January 1994 amounted
to discrimination.
- The
Court has examined this part of the application
under Article 14, taken together with Article 8, of the Convention,
which, as far as relevant, provide as follows:
Article 8
“1. Everyone has the right to respect
for his private and family life, ...”
Article 14
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with
a national minority, property, birth or other status.”
- The
Government maintained that child benefits did not fall within the
ambit of Article 8 of the Convention, as the State's general
obligation to promote family life did not give rise to concrete
rights to specific payments. The statutory provision of Section 1 §
3 of the Child Benefits Act and its application in the present case
did not discriminate against the applicants in the exercise of their
right to respect for their family life.
- The
applicants contested these submissions.
- The
Court reiterates that, according to its established case-law, Article
14 is only applicable if the facts at issue fall within the ambit of
one ore more of the substantive provisions of the Convention and its
Protocols (see, among many other authorities, Petrovic v. Austria,
judgment of 27 March 1998, Reports of Judgments and Decisions
1998 II, § 22; Willis v. United Kingdom,
no. 36042/97, § 29, ECHR 2002-IV).
- As
the Court has held on many occasions, Article 14 comes into play
whenever “the subject-matter of the disadvantage...constitutes
one of the modalities of the exercise of a right guaranteed”,
or the measures complained of are “linked to the exercise of a
right guaranteed” (see Petrovic, cited above, §
28; National Union of Belgian Police v. Belgium, judgment
of 27 October 1975, Series A no. 19, § 45; Schmidt and
Dahlström v. Sweden, judgment of 6 February 1976, Series A
no. 21, § 39).
- By
granting child benefits, States are able to demonstrate their respect
for family life within the meaning of Article 8 of the Convention;
the benefits therefore come within the scope of that provision (see,
mutatis mutandis, Petrovic, cited above, § 30). It
follows that Article 14 – taken together with Article 8 –
is applicable in the present case.
- According
to the Court's case-law, a difference of treatment is discriminatory
for the purposes of Article 14 of the Convention if it “has no
objective and reasonable justification”, that is if it does not
pursue a “legitimate aim” or if there is not a
“reasonable relationship of proportionality between the means
employed and the aim sought to be realised”. The Contracting
States enjoy a certain margin of appreciation in assessing whether
and to what extent differences in otherwise similar situations
justify a different treatment (see, among other authorities, Willis,
cited above, § 39).
34. The
Court is not called upon to decide generally to what extent it is
justified to make distinctions, in the field of social benefits,
between holders of different categories of residence permits. Rather
it has to limit itself to the question whether the German law on
child benefits as applied in the present case violated the
applicants' rights under the Convention. Like the Federal
Constitutional Court in the pilot cases (see paragraph 18 above), the
Court does not discern sufficient reasons justifying the different
treatment with regard to child benefits of aliens who were in
possession of a stable residence permit on one hand and those who
were not, on the other. It follows that there has been a
violation of Article 14 in conjunction with Article 8 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants, by way of just satisfaction, claimed payment of child
benefits for their son from 1 April 1994 until 31 March 1997 and for
their daughter from 1 January 1994 until 31 December 2000. They
maintained that the subject matter of their complaint should not be
divided between claims under the Child Benefits Act and those under
the Income Tax Act, as both regulations violated their rights under
the Convention.
- The
Government did, at first, not express an opinion on the matter. In
their further observations of 12 July 2005, they pointed out that the
present application only related to the child benefits for the period
of time between 1 January 1994 and 31 December 1995, which amounted
to a total of EUR 2,455 for both children.
- The
Court notes that the current proceedings are limited to the
application of the Child Benefits Act as in force from 1 January 1994
until 31 December 1995. The proceedings before the Tax Courts with
respect to the applicants' claims to child benefits from January 1996
onwards (see paragraph 20 above) do not fall within the scope of
the present application as delimited by the decision on
admissibility. Having regard to these circumstances, the Court awards
the applicants EUR 2,500 as compensation for the loss of child
benefits for the applicants' two children during the period of time
from January 1994 to December 1995.
- The
applicants have not made any claim in respect of non-pecuniary
damage. In these circumstances, the Court is not called upon to make
an award under this head.
B. Costs and expenses
- The
applicant did not claim costs. Accordingly, the Court makes no award
of this nature.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Holds unanimously that there has been a
violation of Article 14 in conjunction with Article 8 of the
Convention;
- Holds by six votes to one
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,500 (two
thousand five hundred euros) in respect of pecuniary damage, plus any
tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 25 October 2005, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Michael O'Boyle Josep Casadevall
Registrar President
