Information Note on the Court’s case-law No. 119
May 2009
Brauer v. Germany - 3545/04
Judgment 28.5.2009 [Section V]
Article 14
Discrimination
Exception causing inequality of treatment on grounds of birth outside marriage in view of Germany’s special historical background: violation
Facts: The applicant, who was born in 1948, is the illegitimate child of Mr Schildgen and was recognised by her father a few months after birth. She lived in the former East Germany (GDR) until 1989 and he lived in West Germany (FRG). They regularly corresponded during that period and after German reunification she visited him. After her father’s death, the applicant brought various actions before the domestic courts in order to assert her inheritance rights.
In 1998 she applied for a certificate of inheritance attesting that she was entitled to at least a 50% share of Mr Schildgen’s estate. Her application was rejected at first instance on the ground that, in spite of the reform of the law of succession by the Inheritance Rights Equalisation Act, the first sentence of section 12(10)(2) of the Children Born Outside Marriage (Legal Status) Act 1969 remained in force. That provision stipulated that a child born outside marriage before 1 July 1949 was not a statutory heir. The Regional Court upheld the decision of the court below on the same grounds. The Court of Appeal set aside that judgment and remitted the case to the Regional Court, requesting it to establish whether the applicant was really Mr Schildgen’s daughter and whether there were other heirs. If the applicant could be regarded as entitled to at least a 50% share of the estate, the Regional Court would have to examine the conformity with the Basic Law of the first sentence of section 12(10)(2) of the Children Born Outside Marriage (Legal Status) Act. The Regional Court reiterated its previous decision, basing it on the same arguments. Even if it could be established to a degree of 99% that the applicant was Mr Schildgen’s daughter and that there were no other known heirs, she was excluded from statutory inheritance under the first sentence of section 12(10)(2) of the Children Born Outside Marriage (Legal Status) Act. According to the Regional Court, that provision was not incompatible with the Basic Law in spite of German reunification, as the Federal Constitutional Court had indicated in a decision of 1996. The Court of Appeal again set aside the decision of the Regional Court and remitted the case to it, requesting it to establish whether there were any other heirs to the “second or third degree” and to re-examine the conformity with the Basic Law of the first sentence of section 12(10)(2) of the Children Born Outside Marriage (Legal Status) Act, in cases where the State was the sole statutory heir. The Regional Court reiterated its previous decisions, which it based on the same arguments. The Court of Appeal then dismissed the applicant’s appeal on the ground that it was bound by the decisions of the Federal Constitutional Court in which it had considered that the first sentence of section 12(10)(2) of the Children Born Outside Marriage (Legal Status) Act was compliant with the Basic Law. The Federal Constitutional Court refused to admit a further appeal.
Law: The Government had not disputed the fact that the application of the relevant provisions of domestic law had created a situation in which a child born outside marriage before the cut-off date of 1 July 1949 was treated differently not only to children born within marriage but also to children born outside marriage both before – as concerned children covered by the law of the former GDR if the deceased father had been resident in GDR territory at the time of reunification – and after that cut-off date. It therefore had to be determined whether the alleged difference in treatment had been justified.
The member States of the Council of Europe now attached great importance to equality between children born in and out of wedlock. Very weighty reasons would accordingly have to be advanced before a difference of treatment on the ground of birth out of wedlock could be regarded as compatible with the Convention. The aim pursued by the maintaining of the impugned provision, namely to ensure legal certainty and to protect the deceased and his family, was arguably legitimate. Moreover, as had been the case in other Contracting States, the German legislature had gradually created an equality of status for inheritance purposes between children born in and out of wedlock. After German reunification, in order to avoid any disadvantage for children born outside marriage in a different social context, they had been granted the same inheritance rights as those born within marriage, provided the deceased person had been living in the former GDR at the time of reunification. The legislature had nevertheless maintained the exception laid down in the first sentence of section 12(10)(2) of the Children Born Outside Marriage (Legal Status) Act, which excluded children born out of wedlock before 1 July 1949 from statutory inheritance, and whose constitutionality had been confirmed by the Federal Constitutional Court. While the maintaining of that exception by the legislature had reflected the state of German society at the time and there had been real practical and procedural difficulties in proving the paternity of children, that was no longer the case. Lastly, a new situation had been created with German reunification and the equalisation of legal status between children born in and out of wedlock across a large part of German territory. In particular, given the evolving European context in this sphere, the aspect of protecting the “legitimate expectation” of the deceased and their families had to be subordinate to the imperative of equal treatment between children born outside and within marriage.
As to whether the means employed were proportionate to the aim pursued, a further three considerations appeared decisive to the Court in the present case. First, the applicant’s father had recognised her after birth and had always had regular contact with her despite the difficult circumstances linked to the existence of two separate German States. He had neither a wife nor any direct descendants, but merely heirs to the “third degree” whom he apparently did not know. The protection of “legitimate expectations” on the part of those more distant relatives could not therefore come into play. Secondly, the applicant had spent a large portion of her life in the former GDR, where she grew up in a social context in which children born outside and within marriage enjoyed equal status. However, she had been unable to derive any benefit from the rules providing for equal inheritance rights between children born in and out of wedlock, since her father had not been resident in the territory of the former GDR at the time of German reunification. While this difference in treatment may have been justified in the light of the social context in the former GDR, it had nevertheless had the effect of aggravating the existing inequality in relation to children born out of wedlock before 1 July 1949 whose father had been resident in the FRG. Lastly, the application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act excluded the applicant completely from any statutory entitlement to the estate without affording her any financial compensation.
The Court could not find any ground on which such discrimination based on birth outside marriage could be justified today. Accordingly, there had not been a reasonable relationship of proportionality between the means employed and the aim pursued.
Conclusion: violation (unanimously)
Article 41 – question reserved.
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This summary by the Registry does not bind the Court.
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