EHRM, 25-10-2005, nr. 58453/00

The applicant immigrated to Germany in February 1987. His request for asylum was rejected. His expulsion was, however, suspended under the agreement of the Home Secretaries of the Länder not to expel Polish nationals (‘Ostblockbeschlüsse’ der Innenminister der Länder). In November 1989 the applicant obtained a provisional residence permit (Aufenthaltserlaubnis). In January 1991, following an amendment of the Aliens Act, he was issued with a limited residence title for exceptional purposes (Aufenthaltsbefugnis). This residence title was renewed every two years, the last time in January 1995 until January 1997. In April 1997 the applicant obtained an unlimited residence permit (Aufenthaltsberechtigung).

In July 1995 the applicant's daughter was born.

On 28 July 1995 the applicant applied to the Aschaffenburg Labour Office (Arbeitsamt) for child benefits according to Section 1 of the Federal Child Benefits Act (Bundeskindergeldgesetz, see relevant domestic law below).

On 18 August 1995 the Labour Office dismissed the applicant's request under Section 1 § 3 of the Child Benefits Act. It noted that the applicant only had a limited residence title for exceptional purposes, and no unlimited residence permit or provisional residence permit, as required under Section 1 § 3.

On 12 October 1995 the Federal Labour Office (Bundesanstalt für Arbeit) rejected his objection.

The applicant lodged an action with the Würzburg Social Court (Sozialgericht), claiming that he had been residing in Germany since 1987 and that he should, therefore, have the right to child benefits.

On 21 April 1997 the Social Court dismissed the applicant's action regarding child benefits between July 1995 and April 1997. It confirmed that only aliens with an unlimited residence permit or with a provisional residence permit were entitled to the payment of child benefits under Section 1 § 3 of the Child Benefits Act, as in force until 31 December 1995. According to the Social Court, the legislature had only intended to grant child benefits to aliens who were likely to stay in Germany on a permanent basis. Aliens with only a limited residence title for exceptional purposes were, however, not likely to stay. The court further pointed out that this distinction did not violate the German Basic Law. In the present case, the legislature had remained within its wide margin of appreciation in social law matters.

On 23 April 1998 the Bavarian Social Court of Appeal (Landessozialgericht) dismissed the applicant's appeal to the extent that his claims under the Child Benefits Act until 31 December 1995 were concerned. The Court of Appeal confirmed the lower court's reasoning, noting that the applicant did not have a stable residence permit in 1995, as his limited residence title for exceptional purposes had had to be renewed every two years. Likewise, referring to the wide margin of appreciation of the legislature, it took the view that Section 1 § 3 of the Federal Child Benefits Act was compatible with the Basic Law. In this respect, it considered that until December 1995 families had benefited from child benefits and tax deductions (Kinderfreibetrag) as a system of compensation (dualer Familienlastenausgleich). The applicant and his wife had paid taxes in 1995 but had not obtained child benefits. In the court's view, this taxation, not the refusal of child benefits, might have violated the Basic Law; however, it was not for the social courts to decide on that matter.

On 18 March 1999 the Federal Social Court (Bundessozialgericht) dismissed the applicant's appeal on points of law.

The applicant lodged a constitutional complaint combined with a request for an interim measure. He claimed that the relevant provision of the Federal Child Benefits Act was discriminatory and racist, and violated his right to respect for his family life. In addition, he alleged that the refusal of his request for child benefits infringed the principle of social justice (Sozialstaatsprinzip) laid down in Article 20 § 4 of the Basic Law.

On 21 October 1999 the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain his complaint and rejected his request for an interim measure.

On 3 July 2001 the Würzburg Social Court decided that it was not competent to deal with the applicant's claims regarding child benefits for the period after 1 January 1996 and transferred the proceedings to the Nuremberg Tax Court (Finanzgericht). The proceedings before the Tax Court are still pending.

The applicant, partially relying on documentary evidence, claimed 16,000 euros (EUR) in respect of pecuniary damage, including child benefits for the months July to December 1995 (DEM 420), additional child benefits (Kindergeldzuschlag) (approximately DEM 1,000), lost interests (DEM 1,943.37), the costs of the Administrative Court proceedings aimed at obtaining a residence permit (DEM 1,112.50) and the costs of legal counsel relating to these proceedings (DEM 550.04); costs charged by his legal counsel in the proceedings relating to the child benefits (DEM 1,469.15); the applicant's own expenses (DEM 17,000); and an appropriate compensation for inflation (DEM 5,032.92). He argued, in particular, that he instigated proceedings aimed at obtaining a residence permit merely in an attempt to secure the payment of child benefits.

The applicant also sought compensation for non-pecuniary damage, arguing that the discrimination and alleged attacks against their human dignity had caused his family severe suffering. He further complained about political persecution. He claimed a total of EUR 200,000 under this head. He additionally claimed a sum of EUR 200,000 as compensation for the violation of the Convention to the detriment of thousands of families.

The Government did not express an opinion on the matter within the set time-limit.

The Court awards the applicant EUR 600 as recompense for the child benefits and supplements for the months July to December 1995, including compensation for lost interests. With respect to the costs incurred by the proceedings aimed at obtaining a residence permit, the Court does not discern a sufficient causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.

As to the non-pecuniary damage claimed, the Court, having regard to all the elements before it, considers that the finding of a violation of Article 14 in conjunction with Article 8 constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage sustained by the applicant.

The Court further finds that the applicant's claims for reimbursement of the costs and expenses incurred before the domestic courts and before this Court should be considered under the head of ‘costs and expenses’ below.

The applicant claimed DEM 1,469.15 for costs and expenses incurred before the domestic courts and EUR 17,000 for his own expenses (see paragraph 38 above).

The Government did not express an opinion on the matter.

According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, taking into account the fact that the applicant's complaint was only declared partially admissible, the Court considers it reasonable to award the sum of EUR 300 for costs and expenses incurred by the domestic proceedings. With respect to the applicant's own expenses before this Court, the Court considers it reasonable to award the applicant, who was not represented by a lawyer, the sum of EUR 500 under this head.

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.