Federal Constitutional Court - Press office -

Press release no. 84/2012 of 21 December 2012

Order of 4 December 2012 – 1 BvL 4/12 –

Inadmissible application for constitutional review regarding parental 
benefits for holders of a residence permit according to 
section 104a AufenthG


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. 



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