Federal Constitutional Court, 04.12.2012, Ref.: 1 BvL 4/12
In German law, there are three types of procedure by which the validity of a legal norm (e.g. laws or ordinances) can be reviewed.
1. abstract review of standards before the Federal Constitutional Court
2. concrete review of standards before the Federal Constitutional Court (so-called judicial referral)
3. judicial review proceedings before the Higher Administrative Court
The specific review of standards (i.e. the judge's referral) becomes necessary in certain cases in the context of a legal dispute if the validity of a specific legal standard is important for the outcome of the legal dispute.
In principle, every court seised must not only examine the applicability but also the validity of the legal norm that it must apply in the specific legal dispute.
If the court concludes in the course of this review that the applicable standard is incompatible with higher-ranking law (constitutional law), it may refer this standard to a higher court for review.
In practice, however, very high demands are placed on the submission of such a standard. In particular, the justification requirement of Sections 23 I 2 1. HS, 80 II 1 BVerfGG must be complied with.
In this respect, an order for referral only fulfils the requirement to state reasons under Section 80 (2) sentence 1 BVerfGG if the referring court's explanations show that it has carefully examined both the relevance of the provision for the decision and its constitutionality.
In the above-mentioned decision of the Federal Constitutional Court, the Court had to decide on a referral from the Federal Social Court on the question of whether Section 1 para. 7 no. 2 letter d of the Federal Parental Allowance and Parental Leave Act (BEEG), which excludes holders of a residence permit in accordance with Section 104a para. 1 sentence 1 of the Residence Act (AufenthG) from receiving parental allowance without exception, violates Article 3 para. 1 of the Basic Law.
Facts of the Case The applicant in the main proceedings had travelled to Germany from Yugoslavia with her parents in 1992 at the age of four and had lived here continuously since then.
In July 2008, she received a residence permit for the first time, which was issued in accordance with Section 104a (1) sentence 1 AufenthG.
The residence permit was limited until 31 December 2009 (Section 104a (5) AufenthG) and entitled the holder to pursue gainful employment (Section 104a (4) sentence 2 AufenthG).
Since January 2010, the applicant has held a residence permit in accordance with Section 23 AufenthG. In November 2008, the unmarried applicant gave birth to her daughter.
The plaintiff in the main proceedings had unsuccessfully applied for parental allowance for the first year of her daughter's life.
The competent authority rejected the parental allowance application because the applicant, as the holder of a residence permit in accordance with § 104a AufenthG, was excluded from receiving parental allowance.
The objection was rejected and the action and appeal were also unsuccessful. However, the Court of Appeal allowed an appeal.
In her appeal to the Federal Social Court, the claimant argued that it was constitutionally questionable to exclude foreign nationals who had lived in Germany for many years and for whom it was foreseeable that measures to terminate their residence could no longer be taken from family assistance benefits.
At the latest with the introduction of the Residence Act, it was foreseeable, also with regard to Art. 8 ECHR, that she could no longer be obliged to leave the Federal Republic of Germany.
In an order dated 15 December 2011, the Federal Social Court, to which the case was referred, stayed the proceedings in accordance with Art. 100 Para. 1 GG in conjunction with § 80 Para. 1 BVerfGG and referred the question of the constitutionality of § 1 Para. 7 No. 2 Letter d BEEG to the Federal Constitutional Court for a decision.
The court was convinced of the unconstitutionality of the provision on which the decision was based.
Federal Constitutional Court: The Federal Constitutional Court recognised the referral as inadmissible, as the Federal Social Court had not properly justified the referral in accordance with §§ 23 I 2 1. HS, 80 II 1 BVerfGG.
In the opinion of the Federal Constitutional Court, the Federal Social Court affirmed a violation of Article 3 (1) of the Basic Law without sufficiently examining the relevant legal situation according to its own premises.
The Federal Social Court considers the submitted regulation to be unconstitutional because a residence permit in accordance with Section 104a of the Residence Act does not allow any conclusions to be drawn about a negative residence prognosis, but rather because this type of residence permit is designed in such a way that foreign nationals who are granted a residence permit in accordance with this provision have the possibility of permanent residence in Germany.
However, the Federal Social Court did not sufficiently explain how it derived this interpretation of Section 104a AufenthG. Nor does it explain that the persons concerned are likely to remain in Germany permanently for factual reasons.
The Federal Social Court did not comment on the actual residence prospects of the persons affected by the submitted standard.
Although it addressed the "practical handling" of Section 104a Residence Act, it left it unclear what it meant by this and what conclusions it believed could be drawn from this for the residence prospects of those affected.
Nor did it state that the persons concerned actually had permanent prospects of remaining for other reasons.
Rather, it had based the assumption of a permanent perspective to stay solely on the legal structure of the residence status. The submission should be measured against this.
Source: Federal Constitutional Court
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