Summary:

I.

The Federal Act on the Parental Benefit and Parental Leave of December 2006 (hereinafter, the “Act”) introduced the payment of the parental benefit. This is a government payment to parents who, because they are caring for a child, are either not gainfully employed or not gainfully employed full-time, or who interrupt their gainful employment in order to care for their child. The parental benefit may be drawn from the date of the child’s birth until the end of the fourteenth month of its life. However, under sentence 1 of § 4.3 of the Act, the period in which one parent draws parental benefit must, in principle, not be longer than twelve months.  At least two months’ parental benefit must be claimed by the other parent (known as “partner months” or “father months”). There are exceptions, for example, for single parents.

In the original proceedings, the married plaintiff was granted the parental benefit for the first twelve months of her child’s life. In addition to this, she also claimed the parental benefit for the thirteenth and fourteenth months. This claim was rejected. Her objection and her civil action against it were unsuccessful. The plaintiff then appealed to the Higher Social Court (Landessozialgericht). The court regards the provision in sentence 1 of § 4.3 of the Act as unconstitutional and therefore submitted it to the Federal Constitutional Court for review. In the opinion of the Higher Social Court, the provision encroaches without justification upon the freedom of spouses and parents to decide on their own terms on the allocation of responsibilities in the family, which is protected by Article 6.1 and 6.2 of the Basic Law, since it makes the granting of the parental benefit dependent on a particular allocation of responsibilities in the family, at least for two months.

II.

The Federal Constitutional Court holds that the judicial referral of the Higher Social Court is inadmissible.

A court may only obtain the decision of the Federal Constitutional Court on the constitutionality of a legislative provision if it has first carefully examined this constitutionality itself. In doing this, it must in particular consider the relevant case-law of the Federal Constitutional Court. Taking into account the legal opinions developed in case-law and literature, it must also critically consider the grounds which were crucial to the legislator’s decision in the legislative process. The referral does not satisfy these requirements.

The provision on the “partner months” is intended to encourage the partners’ sharing of work and family responsibilities and in this way to break down the one-sided allocation of the work of childcare to women, with its detrimental consequences on the job market. In this way, the legislator wished to comply with the constitutional duty to promote gender equality under Article 3.2 of the Basic Law. According to the case-law of the Federal Constitutional Court, this constitutional directive has the purpose of enforcing gender equality in social reality and overcoming the traditional allocation of roles. This also imposes on the legislator a duty to counteract a traditional allocation of roles which would mean that the child was one-sidedly and permanently allocated to the mother’s “sphere of responsibility”. The referring Higher Social Court did not sufficiently consider this case-law. Thus, for example, it should have been considered whether the “partner month” provision, which is above all directed at fathers, reduces social prejudices, in particular in the workplace, and as a result of which fathers would be encouraged to claim parental leave. The same applies to the consideration as to whether the lower promotion prospects of women could not in part be made up for if men, too, increasingly took parental leave, because in this way the concern of employers that women are not continuously available for work because of childcare might be countered.

Insofar as the Higher Social Court regards the provision on the “partner months” to be disproportionate because it finds it unsuitable for contributing to an allocation of roles on a partnership basis, it fails to give the necessary critical consideration of the scope of the legislator’s latitude of assessment and prognosis. A means chosen by the legislator is suitable in constitutional terms if it is capable of furthering the desired result. The mere possibility of attaining the goal is sufficient here. According to the Federal Statistical Office, the proportion of children whose fathers received the parental benefit rose from 15.4% to 23.9% between 2007 and 2009. This data suggests that acceptance for fathers taking family responsibility may be expected to increase. It thus appears that it is at least possible that the goal pursued by the legislator, ie. promoting the allocation of work and family responsibilities on a partnership basis, can be attained.