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Inadmissible application for constitutional review regarding parental benefits for holders of a residence permit according to section 104a AufenthG
Press Release No. 84/2012 of 21 December 2012
Order of 4 December 2012
1 BvL 4/12
In a decision of 4 December 2012, which was published today, the First Senate of the Federal Constitutional Court declared that a submission from the Federal Social Court (Bundessozialgericht) was inadmissible. The provision of the Federal Parental Benefit and Parental Leave Act (Bundeselterngeld- und Elternzeitgesetz) which was submitted for review excludes the holders of a residence permit granted according to Section 104a of the Residence Act (Aufenthaltsgesetz) from receiving parental benefits. The Federal Social Court's order for referral found a violation of Article 3.1 of the Basic Law (Grundgesetz - GG), without sufficiently looking into the relevant specifics of the initial legal situation, which, according to its own propositions, were decisive. This does not meet the requirements for the presentation of evidence, which the Federal Constitutional Court, according to its established case-law, demands from a judicial referral.
The decision is essentially based on the following considerations:
1. Section 1.7 of the Federal Parental Benefit and Parental Leave Act (BEEG), in the version of 19 August 2007 (Federal Law Gazette (Bundesgesetzblatt - BGBl) I p. 1970), governs the extent to which foreign citizens have a right to receive parental benefits. Holders of a residence permit according to Section 104a of the Residence Act (AufenthG), which was introduced via the same law, were not eligible in this regard. According to Section 104a AufenthG, foreigners whose de-portation has been suspended, and who by 1 July 2007 had been in the Federal Republic of Ger-many for several years could - under certain conditions - receive a residence permit that was limited until 31 December 2009.
2. The plaintiff in the original proceedings held a residence permit according to Section 104a AufenthG. She had unsuccessfully requested parental benefits for the first year of her daughter's life. Both the original lawsuit and the appeal were unsuccessful. By an order of 15 December 2011, the Federal Social Court stayed the proceedings and asked the Federal Constitutional Court for a decision on the constitutionality of Section 1.7 no. 2 lit. d BEEG.
3. The Federal Social Court believes that in general, it is admissible that parental benefits are lim-ited to persons who are likely to stay in Germany permanently. This is in accordance with the case-law of the Federal Constitutional Court; a positive prediction for attaining permanent resi-dency can derive both from the legal residence status and from matters of fact in connection with the residency.
4. The submission, however, is inadmissible. The Federal Social Court's order for referral does not meet the requirements for the substantiation of its reasons to consider the submitted norm unconstitutional.
a) The Federal Social Court believes that the submitted regulation is unconstitutional because a residence permit according to Section 104a AufenthG does not allow the authorities to draw conclusions regarding a negative prediction for attaining permanent residency. It claims that accord-ing to its legal consequences and structure, Section 104a AufenthG is constructed in such a way that the foreign citizens who are subject to it do have the option of attaining permanent residency in Germany. Whether the assessment of the Federal Social Court is correct cannot be ascertained due to the fact that the explanations in the order for referral are very short in this regard. It is not the Federal Constitutional Court's task to clarify specialised legislation as part of the evaluation of a norm under constitutional law. This applies at least in cases where the primary legal framework cannot be ascertained at a glance, but where it is - like in the present case - shaped by a complex interlock of different specialised legal provisions. In particular, it would have been necessary to explain the significance of the fact that holders of a residence permit according to Section § 104a AufenthG could not receive settlement permits and that, with the end of the transition period on 31 December 2009, they had to fulfil stricter requirements in order to subsequently receive a residence permit according to different legal provisions.
b) As has already been decided by the First Senate, a positive prediction for attaining residency can also derive from the factual circumstances of a stay. However, the Federal Social Court has not commented on this aspect; instead, it based its assumption regarding the permanent perspective for residency solely on the legal design of the residence status. This is the sole standard of review for the referral.