Corte europea dei diritti dell’uomo (Sezione IV), 25 ottobre 2005

(Application no. 58453/00)







This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.


In the case of Niedzwiecki v. Germany,


The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Mr J. Casadevall, President
Mr G. Bonello
Mr M. Pellonpää
Mr K. Traja
Mr J. Borrego Borrego
Ms L. Mijović
Ms R. Jaeger, judges
and  Mr M. O’Boyle, Section Registrar,

Having deliberated in private on 4 October 2005,

Delivers the following judgment, which was adopted on that date:


1.  The case originated in an application (no. 58453/00) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Jaroslaw Niedzwiecki (“the applicant”), on 27 October 1999.

2.  The German Government (“the Government”) were represented by their Agent, Mr K. Stoltenberg, Ministerialdirigent, and, subsequently, Mrs A. Wittling-Vogel, Ministerialrätin, of the Federal Ministry of Justice.

3.  The applicant alleged, in particular, that the refusal of child benefits between July and December 1995 amounted to discrimination in the exercise of his right to respect for family life.

4.  The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

5.  By a decision of 17 June 2003 the Court declared the application partly admissible.

6.  On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1).

7.  The applicant and the Government each filed observations on the merits (Rule 59 § 1).



8.  The applicant was born in 1961. At the time the application was lodged he lived in Erlenbach in Germany. He currently resides in Swidnica in Poland.

1.  The applicant’s situation in Germany

9.  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 (“Ostblockbeschlüsseder 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).

10.  In July 1995 the applicant’s daughter was born.

2.  The child benefit proceedings before the Labour Office

11.  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).

12.  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.

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

3.  The proceedings before the Social Court

14.  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.

15.  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.

4.  The appeal proceedings

16.  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.

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

18.  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.

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

5.  The proceedings concerning claims after 1 January 1996

20.  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.


21.  Section 1 of the 1994 Federal Child Benefits Act (Bundeskindergeld-gesetz, Federal Gazette - Bundesgesetzblatt 1994-I, S. 168), as in force until 31 December 1995, provided for the payment of child benefits which are financed by the Federation. Section 1, as far as relevant, provided as follows:

“(1)  Under the provisions of the present Act, anybody is entitled to child benefits for his or her children ...,

1.  who has a place of residence (Wohnsitz) or regular residence (gewöhnlicher Aufenthalt) within the scope of the present Act,


(3)  An alien is entitled to a benefit under the present Act, if he has a residence permit or a provisional residence permit. ...”

22.  Following a reform of the law on child benefits with effect from 1 January 1996, an equivalent provision on child benefits is to be found in Section 62 § 2 of the Income Tax Act (Einkommenssteuergesetz).

23.  By decision of 6 July 2004 (1 BvL 4/97, 1 BvL 5/97, 1 BvL 6/07), the Federal Constitutional Court ruled that section 1 § 3 of the Child Benefits Act in the above cited version was incompatible with the right to equal treatment under Article 3 of the Basic Law. Accordingly, the legislator was ordered to amend the law by 1 January 2006.

24.  The Federal Constitutional Court found, in particular, that the different treatment of parents who were and who were not in possession of a stable residence permit lacked sufficient justification. As the granting of child benefits related to the protection of family life under Article 6 § 1 of the Basic Law, very weighty reasons would have to be put forward to justify unequal treatment. Such reasons were not apparent. In so far as the provision was aimed at limiting the granting of child benefits to those aliens who where likely to stay permanently in Germany, the criteria applied were inappropriate to reach that aim. The fact that a person was in possession of a limited residence title did not form a sufficient basis to predict the duration of his or her stay in Germany. The Constitutional Court did not discern any other reasons justifying the unequal treatment.



25.  The applicant complained that the German authorities’ refusal of child benefits for the period of time between July and December 1995 amounted to discrimination, racism and inhuman treatment.

26.  The Court has examined this complaint under Article 14, taken together with Article 8, of the Convention, which as far as relevant, provide as follows:

Article 8

“1.  Everyone has the right to respect for his private and family life, ...”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

27.  The Government maintained that child benefits did not fall within the ambit of Article 8 of the Convention, as the State’s general obligation to promote family life did not give rise to concrete rights to specific payments. The statutory provision of Section 1 § 3 of the Child Benefits Act and its application in the present case did not discriminate against the applicant in the exercise of his right to respect for his family life.

28.  The applicant contested these submissions.

29.  The Court reiterates that, according to its established case-law, Article 14 is only applicable if the facts at issue fall within the ambit of one ore more of the substantive provisions of the Convention and its Protocols (see, among many other authorities, Petrovic v. Austria, judgment of 27 March 1998, Reports of Judgments and Decisions 1998-II, § 22; Willis v. United Kingdom, no. 36042/97, § 29, ECHR 2002-IV).

30.  As the Court has held on many occasions, Article 14 comes into play whenever “the subject-matter of the disadvantage...constitutes one of the modalities of the exercise of a right guaranteed”, or the measures complained of are “linked to the exercise of a right guaranteed” (see Petrovic, cited above, § 28; National Union of Belgian Police v. Belgium, judgment of 27 October 1975, Series A no. 19, § 45; Schmidt and Dahlström v. Sweden, judgment of 6 February 1976, Series A no. 21, § 39).

31.  By granting child benefits, States are able to demonstrate their respect for family life within the meaning of Article 8 of the Convention; the benefits therefore come within the scope of that provision (see, mutatis mutandis, Petrovic, cited above, § 30). It follows that Article 14 – taken together with Article 8 – is applicable.

32.  According to the Court’s case-law, a difference of treatment is discriminatory for the purposes of Article 14 of the Convention if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see, among other authorities, Willis, cited above, § 39).

33. The Court is not called upon to decide generally to what extent it is justified to make distinctions, in the field of social benefits, between holders of different categories of residence permits. Rather it has to limit itself to the question whether the German law on child benefits as applied in the present case violated the applicant’s rights under the Convention. In this respect the Court notes the decision of the Federal Constitutional Court concerning the same issue which was given after the proceedings which form the subject matter of the present application had been terminated (see paragraph 24 above). Like the Federal Constitutional Court, the Court does not discern sufficient reasons justifying the different treatment with regard to child benefits of aliens who were in possession of a stable residence permit on one hand and those who were not, on the other. It follows that there has been a violation of Article 14 in conjunction with Article 8 of the Convention.


34.  In his further observations on the merits of 1 June 2005, the applicant complained under Article 6 § 2 of the Convention about the length of the proceedings before the Tax Courts and about the Federal Constitutional Court’s refusal to issue an interim order in his favour.

35.  The Court notes that these complaints fall outside the scope delimited by the Chamber’s decision on admissibility. It follows that the Court has no jurisdiction to examine the merits of these complaints (see, among other authorities, Süßmann v. Germany, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, § 29; and Ionescu v. Romania, no. 35037/99, § 68, 28 June 2005).


36.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

37.  The applicant claimed compensation for pecuniary and non-pecuniary damage, and the reimbursement of his costs and expenses.

A.  Damage

38.  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.

39.  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.

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

41.  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.

42.  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.

43.  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.

B.  Costs and expenses

44.  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).

45.  The Government did not express an opinion on the matter.

46.  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.

C.  Default interest

47.  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.


1.  Holds that there has been a violation of Article 14 in conjunction with Article 8 of the Convention;

2.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, 1,400 (one thousand four hundred euros) for pecuniary damage and costs and expenses, plus any tax that may be chargeable;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

3.  Holds that the finding of a violation constitutes sufficient just satisfaction in respect of any non-pecuniary damage sustained by the applicant;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 25 October 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Michael O’Boyle Josep Casadevall 
Registrar President