Federal Constitutional Court - Press office -

Press release no. 18/2012 of 8 March 2012

Order of 7 February 2012 – 1 BvL 14/07 –

Exclusion of non-EU citizens from the grant of Land child-raising benefit
 under the Bavarian Land Child-Raising Benefit Act unconstitutional


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. 

 
This press release is also available in the original german version.