FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 24345/04 by Bernd HANSEN against Germany

The European Court of Human Rights (Fifth Section), sitting on 22 January 2008 as a Chamber composed of:

Peer Lorenzen , President, Snejana Botoucharova , Karel Jungwiert , Rait Maruste , Javier Borrego Borrego , Renate Jaeger , Mark Villiger , judges, and Claudia Westerdiek , Sec tion Registrar ,

Having regard to the above application lodged on 5 July 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Bernd Hansen, is a German national who lives in Jesteburg.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is the father of a daughter (C) who was born out of wedlock in 1996. The child lives with her mother, who has sole parental authority.

On 22 November 2001 the Bad Segeberg District Court ordered the applicant to pay his daughter child maintenance amounting to 100% of the respective standard amount ( Regelbetrag ) of child maintenance provided for by section 1 of the Regulation establishing the standard amounts of child maintenance ( Regelbetrag-Verordnung ), hereafter referred to as “the Regulation” (see “Relevant domestic law and practice” below). Relying on section 1612 b § 5 of the German Civil Code, the District Court found that the applicant could not deduct the equivalent of half of the child benefits ( Kindergeld ) received by the mother in respect of C from his monthly maintenance payments, as the maintenance payments he was able to make did not reach the minimum threshold the German legislator deemed necessary to cover the costs of a child ’ s basic needs (that is, 135 % of the standard amounts indicated in the Regulation ( Barexistenzminimum ) – see “Relevant domestic law and practice” below).

The applicant thereafter complained before the Schleswig Holstein Court of Appeal about the District Court ’ s refusal to deduct that amount from the maintenance payments he had to make.

On 2 January 2002 the Schleswig Holstein Court of Appeal confirmed the decision of the District Court and rejected the applicant ’ s complaint, arguing that section 1612 b § 5 of the Civil Code violated neither the right to equality nor the right to respect for family life. Moreover, the applicant did not contend that, due to his maintenance obligations, he had experienced financial hardship.

On 15 December 2003 the Federal Constitutional Court refused to admit the applicant ’ s constitutional complaint. It referred to its leading decision of 9 April 2003 (see “Relevant domestic law and practice” below), according to which section 1612 b § 5 of the Civil Code was compatible with the principle of equality under Article 3 of the Basic Law and the right to respect for family life as guaranteed by Article 6 of the Basic Law. The decision was served on the applicant on 5 January 2004.

B. Relevant domestic law and practice

1. Child maintenance

Section 1612 a of the Civil Code grants minor children the right to obtain maintenance payments from the parent with whom they do not live, hereafter referred to as “the non-custodial parent”. The actual amount of child maintenance is determined by the competent courts according to the individual circumstances of each case on the basis of guidelines and a support table (“ Düsseldorfer Tabelle ” ) which take into account the financial capacities of the non-custodial parent . The calculated amount of payable maintenance is indicated as a percentage of the standard amounts determined by the Regulation. These standard amounts are graded according to three age groups and are adjusted every two years in line with the index used for pension rates in order to take economic realities into account. At the moment in which the applicant lodged his complaints with the Court the Regulation provided for the following standard amounts: 199 euros (EUR) for children up to 6 years old, EUR 241 for children between 7 and 13 years old and EUR 284 for children over 13 years old.

2. Child benefits

The granting of child benefits is regulated by the Federal Child Benefits Act ( Bundeskindergeldgesetz ). If the child lives with only one parent, section 3 § 2 sentence 1 of that Act provides that child benefits are paid to the parent with whom the child lives, hereafter referred to as “ the custodial parent”. According to section 6 of the Act the child benefit amounts to EUR 154 per month/per child for up to three children and EUR 179 for the fourth and each additional child . Child benefits are paid out of the budget of the Federation and aim to compensate parents ’ financial burdens arising from the support and care of their children.

3. Deduction of child benefits from maintenance payments

As child benefits are not payable to non-custodial parents, section 1612 b § 1 of the Civil Code ensures that the latter will likewise benefit from them. As a general rule, section 1612 b § 1 of the Civil Code provides that half of the child benefits paid for each child shall be deducted from the amount of maintenance non-custodial parents are liable to pay.

Section 1612 b § 5 of the Civil Code derogates from that rule. It provides that child benefits shall not be deducted from the maintenance payments if the non-custodial parent is not able to pay maintenance amounting to 135% of the standard amounts provided for by the Regulation, hereafter referred to as “the reference amount”. This provision aims to ensur e t hat in cases where the income of non-custodial parents does not suffice to guarantee their own and their children ’ s subsistence level, the child benefits shall primarily be used to close that financial gap until the existence minimum of the child has been secured. The German legislator deemed 135% of the standard amount of child maintenance necessary to cover the costs of a child ’ s basic needs.

4. Minimum amounts of self-retention (Selbstbehalt)

To ensure that maintenance payments will not endanger the subsistence minimum of non- custodial parents , the latter are protected by minimum amounts which they may retain if the maintenance payment would endanger their level of subsistence. The above-mentioned support table ( “ Düsseldorfer Tabelle ” ) gives benchmarks as to the minimum amounts.

5. Case-law of the Federal Constitutional Court

In its leading decision of 9 April 2003 (see n os. 1 BvL 1/01 and 1 BvR 1749/01 , D ecision s of the Federal Constitutional Court (BVerfGE), vol. 108, pp. 52 et seq. ) , the Federal Constitutional Court ruled that section 1612 b § 5 of the Civil Code was compatible with the provisions of the German Basic Law for the following reasons:

Firstly, there was no violation of the principle of equality under Article 3 of the Basic Law in so far as the deduction of child benefits from maintenance payments depended on the financial position of the non-custodial parent. In particular, there was no unequal treatment of persons placed in analogous situations as section 1612 b § 5 of the Civil Code equally applied to all parents with child maintenance obligations and because a distinction according to different financial capacities did not constitute unequal treatment of persons placed in equal situations. Moreover, the obligation of non-custodial parents to supplement their maintenance payments by their child benefits up to the reference amount, affected non-custodial parents with lower incomes rather than those with higher earnings. However, this was not the consequence of unequal treatment but the result of different living situations and incomes. With section 1612 b § 5 of the Civil Code the German legislator merely took into account these differences and provided for a financial adjustment for those cases in which non-custodial parents were not able to cover the costs of their children ’ s basic needs. Even assuming that section 1612 b § 5 of the Civil Code entailed unequal treatment, it would be justified by the legitimate aim of securing the subsistence level of children of separated parents. In view of the parents ’ duty to provide for the maintenance of their children, and given that non-custodial parents were protected by minimum amounts of self-retention from falling below the level of subsistence on account of their maintenance obligations, there was no violation of the principle of equality.

Secondly, section 1612 b § 5 of the Civil Code entailed a different treatment between custodial and non-custodial parents. However, the unequal treatment was justified because section 1612 b § 5 of the Civil Code aims to adjust the double burden lone parents are faced with when caring for their children and being, at the same time, obliged to perform paid work to cover the financial needs of the family. Thus, s ection 1612 b § 5 of the Civil Code helps custodial parents to cover their own living cost s and to ameliorate the child ’ s living conditions , which are determined by the financial situation of the custodial parent. The non-custodial parents ’ margin of subsistence, on the other hand, was sufficiently protected by minimum amounts of self-retention.

Lastly, section 1612 b § 5 of the Civil Code did not violate the right of non-custodial parents to have access to their children, as the German law provides for sufficient possibilities to ensure that the access of non-custodial parents to their children is not jeopardised by the costs required to visit them. In cases in which non-custodial parents experience financial hardship, the competent judges have the possibility to grant them higher minimum amounts of self-retention or to consider only a reduced amount of their income when calculating their maintenance obligations.

COMPLAINTS

1. The applicant complained under Article 14 in conjunction with Article 8 of the Convention that the application of section 1612 b § 5 of the Civil Code had constituted discrimination against him in relation to the mother of his child, who had disposed of the whole amount of child benefits whereas he had had to use his part of the child benefits for the maintenance payments. He also submitted that the application of section 1612 b § 5 of the Civil Code had constituted discrimination against him in relation to non-custodial parents with higher incomes.

2. The applicant complained under Article 8 that the application of section 1612 b § 5 of the Civil Code had infringed his right to access to his daughter as it had deprived him of the necessary financial means to visit her.

THE LAW

1. The applicant complained that the application of section 1612 b § 5 of the Civil Code had amounted to discrimination. He relied on Article 14 in conjunction with Article 8 of the Convention, the relevant parts of which provide as follows:

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.”

Article 8

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

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 or more of the substantive provisions of the Convention and its Protocols (see, among many other authorities, Okpisz v. Germany , no. 59140/00, § 30, 25 October 2005 ; Petrovic v. Austria , judgment of 27 March 1998, Reports of Judgments and Decisions 1998 ‑ II, § 22; and Willis v. United Kingdom , no. 36042/97, § 29, ECHR 2002-IV).

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 Okpisz , cited above, § 31 ; National Union of Belgian Police v. Belgium , judgment of 27 October 1975, Series A no. 19, § 45; and Schmidt and Dahlström v. Sweden , judgment of 6 February 1976, Series A no. 21, § 39).

The Court must therefore determine whether the facts of the present case come within the scope of Article 8 and, consequently, of Article 14 of the Convention.

It considers at the outset that the refusal of the German authorities to deduct the applicant ’ s part of the child benefits from his maintenance payments cannot amount to a failure to respect family life, since Article 8 does not impose any positive obligation on States to provide child allowances of a particular amount (see mutatis mutandis, Petrovic, cited above, § 26 ) .

However, the Court has also held that by granting child benefits , States are able to demonstrate their respect for family life within the meaning of Article 8 of the Convention and that the benefits therefore come within the scope of that provision (see Okpisz , cited above, § 3 2, which concerned the exclusion ipso jure of foreigners from being entitled to receive child benefits, and Petrovic, cited above, § 29, where parental leave allowances were available only to mothers under Austrian law ).

The Court considers that this principle applies, a fortiori , to the present case, where the category of non-custodial parents was not as such excluded from being granted child benefits, but where the German legislator even intended that they should, in principle, benefit from them. Thus, section 1612 b § 1 of the Civil Code provides, as a general rule, that non-custodial parents may deduct the child benefits from their maintenance payments. However, i n so far as section 1612 b § 5 of the Civil Code derogates from that rule by obliging non-custodial parents to use their parts of the child benefits to cover the basic needs of their children, the German legislator regulated typical obligations arising out of the relationship between parents and their children, which necessarily affects family life within the meaning of Article 8. The disputed obligation under section 1612 b § 5 of the Civil Code falls therefore within the scope of that provision.

It follows that Article 14 , taken together with Article 8 , is applicable in the present case.

According to the Court ’ s case-law, a difference in 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” (see, among other authorities, Willis , cited above, § 39).

a) The applicant submitted that the application of section 1612 b § 5 of the Civil Code had resulted in a discriminatory treatment between custodial and non-custodial parents. He alleged that section 1612 b § 5 of the Civil Code had obliged him to effectively put his part of the child benefits towards his maintenance payments, whereas the mother of his child could dispose of the entire child benefits as she wished.

The Court notes that according to section 1612 b § 5 of the Civil Code non-custodial parents have to contribute with their half of the child benefits to the overall maintenance of their children as long as their maintenance payments do not reach the reference amount. Custodial parents, on the other hand, have to use their part of the child benefits for the coverage of their children ’ s financial needs only if the maintenance payments of the non-custodial parent, even without the deduction of child benefits, f a ll below the reference amount . Given that both parents are equally responsible for the maintenance of their children, the Court starts from the premise that section 1612 b § 5 of the Civil Code entails a different treatment of persons placed in an analogous situation.

The Court recalls that 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 in law. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background (see, among other authorities, Petrovic, cited above, § 38).

Turning to the present case, the Court notes that section 1612 b § 5 of the Civil Code pursues, according to the findings of the Federal Constitutional Court in its leading decision, the aim of adjusting the real disadvantages of custodial parents who carry the double burden of providing for the care of their children and being, at the same time, obliged to perform paid work to cover the financial needs of the family. In such situations section 1612 b § 5 of the Civil Code aims to help cover not only the custodial parent ’ s own living costs, but also the child ’ s living conditions, which are determined by the financial situation of the custodial parent. The Court therefore considers that section 1612 b § 5 of the Civil Code pursues a “legitimate aim”.

As to whether there was a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”, the Court notes that the German law provides for minimum amounts of self-retention (see “Relevant domestic law and practice” above) in cases where the obligation to pay maintenance would result in non-custodial parents falling below the level of subsistence. As has been underlined also by the Federal Constitutional Court , the German law thus provides for means to ensure that non-custodial parents will not fall below the subsistence minimum on account of their maintenance obligations.

Under these circumstances and having regard to the parents ’ responsibility to provide for the maintenance of their children, the Court is satisfied that the German legislator struck a fair balance between the interests of the custodial parent and the child, on the one hand, and of the non-custodial parent, on the other hand.

The Court concludes therefore that the difference in treatment between the applicant as non-custodial parent and the custodial parent was not discriminatory within the meaning of Article 14.

b) The applicant further argued that section 1612 b § 5 of the Civil Code favoured non-custodial parents with higher incomes over those with lower earnings.

The Court observes at the outset that section 1612 b § 5 of the Civil Code excluded the deduction of child benefits from the maintenance payments if non-custodial parents were not in a position to pay the reference amount of child maintenance. The German legislator thus distinguished between two situations: either non-custodial parents were able to contribute to the child ’ s maintenance in the amount of at least 135 % of the standard amount and could obtain the deduction of their child benefits from the maintenance payments, or they were not able to cover their children ’ s basic needs and were thus excluded from the deduction of the child benefits. The question that arises, in principle, is therefore whether parents who, like the applicant, were not able to pay their children the reference amount of child maintenance were placed in an analogous situation with non-custodial parents who could secure the subsistence minimum of their children.

However, the Court is not required to decide that question , if section 1612 b § 5 of the Civil Code fulfilled a “legitimate aim” and if there was a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”.

In this connection, the Court notes that parents bear the responsibility of supporting and financially maintaining their children. It observes that, according to the findings of the Federal Constitutional Court in its leading decision, section 1612 b § 5 of the Civil Code aims to ensure that the costs of a child ’ s basic needs are covered. The provision in issue therefore pursues the “legitimate aim” of securing the subsistence minimum of children of separated parents.

As to proportionality, the Court notes that in those cases where maintenance payments would endanger the subsistence level of non-custodial parents, the German law provides for minimum amounts of self-retention (see “Relevant domestic law and practice”) to protect non-custodial parents from falling below the subsistence minimum on account of their maintenance obligations. However, in the present case the applicant did not even contend that he had been in such precarious financial situation.

Under these circumstances and having regard to its margin of appreciation, the German legislator has struck a fair balance between the competing interests, namely the interest of the child to have his or her basic pecuniary needs covered and the interest of non-custodial parents to be protected from being overburdened by their maintenance obligations.

Accordingly, the difference in treatment complained of was not discriminatory, within the meaning of Article 14.

c) It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicant further complained that the application of section 1612 b § 5 of the Civil Code had violated his right to respect for family life as it had deprived him of the financial means required to cover the costs ( e.g . transport costs) of visiting his daughter. He alleged that he had not been able to see C for some three years and six months. The applicant relied on Article 8.

In the light of all the material in its possession, and insofar as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek P eer Lorenzen              Registrar              President