In 2016, the City of Zagreb introduced a family policy measure for parent caregivers. This measure provided financial assistance amounting to 65% of the average gross income in the City of Zagreb to a parent who takes care of more than three children until the youngest one turns 15 years old. Political changes enabled the new city government to reconsider this measure and abolish it in a short period of time. Beneficiaries complained to the High Administrative Court and Constitutional Court, but without success.
The Constitutional Court pointed out that the decision of the High Administrative Court was not unlawful, that the legitimate expectations of parents were not violated, that its decision was quasi-retroactive and not retroactive, and that financial assistance for a parent caregiver was a benefit and not a right.
The City of Zagreb issued a decision regarding financial assistance for the mother caregiver (majka odgojiteljica) in 2016,[1] which was changed a month later to the parent caregiver.[2]
A mother caregiver was defined as a female person who has given birth, adopted, cared for, or been entrusted with the care and upbringing of at least three children by the decision of the Social Welfare Centre, and whose youngest child is not yet attending primary school.
The right to financial assistance under the abovementioned decision could be exercised by the mother caregiver or similarperson if she were unemployed at the time of applying for financial assistance and continued to be unemployed while receiving it, provided that children were not enrolled in kindergarten (except if they were attending a mandatory preschool programme).
The amount of family financial assistance equalled the average net income in the Republic of Croatia, according to data published by the Croatian Bureau of Statistics.
This financial assistance would cease when the youngest child turned 15 years old, if the mother (or parent caregiver) gained employment, or if a child were enrolled in kindergarten before starting the compulsory preschool programme.
In 2018, the City of Zagreb amended this decision.[3] The most important change was setting the amount of financial assistance to 65% of the average gross income in the City of Zagreb.
The abovementioned measures were considered pro-family and demographic measures. The other reason for introducing them was that there were not enough kindergartens, so the lack of day-care facilities was compensated for by providingfinancial assistance to parent caregivers.
Status of the parent caregiver did not refer to their employment status, but pension contributions were paid.
In the year 2021, the election brought political changes.
The new Mayor of Zagreb (“Možemo”) inherited a measure by which 5,800 mothers in Zagreb received about HRK 5,000 per month (approximately EUR 660) for three or more children (approximately 20,000 children from the families of those receiving financial assistance). About HRK 40 million (approximately EUR 5.3 million) were allocated monthly from the city’s budget.
The new city administration permanently abolished this measure for new users[4] and drastically cut it for existing userson 8 September 2022.[5]
Under the previous decision, financial assistance was supposed to be received until the child reached the age of 15 years. However, this was shortened to the age of seven years, and the amount was cut sharply from HRK 5,000 to 1,000 net (from EUR 660 to 132). The first reduction was planned to be implemented immediately (income of this family measure’sbeneficiaries would fall to 65% of the gross salary in the economy in Zagreb); the second reduction to the net minimum wage, which was implemented from 1 April and later from 1 July of the same year (2023)—cut the assistance to 50% of the minimum wage. From 1 October 2023, family assistance ceased for beneficiaries whose youngest child had reached the age of seven years. For other beneficiaries, assistance would end when their child reached the age of seven, and in some other cases that are not important for the purpose of this work.
The arguments of the City of Zagreb were presented in a document titled, ‘Basis for a Public Debate – The Parent Caregiver Measure’ (Podloga za javnu raspravu – mjera roditelj odgojitelj).[6] They were as follows: The demographic outcome of the measure, which was aimed at parents with three or more children, did not justify the cost. The importance of institutional education at an early age is contrary to the effects on the upbringing and education of children of early and preschool age included in the measure. The social outcome of the measure, due to the long absence of women from the labour market, undermines their economic independence and makes them more vulnerable to poverty in old age. Thefinancial resources spent on the measure could have been distributed more fairly to all children in the City of Zagreb.
The beneficiaries of the measure initiated administrative proceedings. The High Administrative Court suspended the measure until the final judgement.
After conducting the proportionality test, the High Administrative Court concluded that the goals the City of Zagreb wanted to achieve by adopting the amended measure were legitimate.[7] Furthermore, the court found that the decision of the City of Zagreb Assembly of 9 December 2021 did not interfere with the acquired rights of the financial assistancebeneficiaries—parent caregivers—and this decision was not retroactive considering their property rights, regarding whichthe users had legitimate expectations. Nevertheless, the City of Zagreb failed to strike a balance between public interest and protection of the legitimate expectations of the of financial assistance beneficiaries—the parent caregivers—and imposed an excessive burden (primarily in terms of inadequate adjustments in too short a period).
On 8 September 2022, the City of Zagreb adopted a “new” decision that introduced several compensatory measures (gradual reduction in the amount of financial assistance), as the legality, regularity, and expediency of the same measures were the subjects of another proceeding, which ended with the final judgment of the High Administrative Court of the Republic of Croatia of 27 February 2023.[8]
The High Court in this decision rejected further complaints by parent caregivers in the second judgement, with the following argumentation:
“The content of the measures described, contrary to the applicant's allegations, adequately allows users of the measure to return to the labour market more easily, which is why it cannot be assessed that such measures would in any way constitute an excessive burden for users. ... the bearer (i.e. the City of Zagreb), by the introduced measures, struck a balance between the public interest and the protection of the legitimate expectations of the addressees of the contested decision. Consequently, the Court considers that with the proposed compensatory measures parents are not placed in a less favorable position compared to other parents when enrolling children in kindergarten nor with other labour market participants in the City of Zagreb.”[9]
Parents, individually and through parents caregivers’ associations, lodged a constitutional complaint contending that the High Administrative Court’s decision breached the lawfulness principle.
The Constitutional Court analysed the complaints and decided the following:
· Only individuals whose rights were allegedly breached were entitled to lodge a constitutional complaint.
· Parent caregivers’ civil associations were not entitled to lodge it.
· The High Administrative Court’s decision was not unlawful.
· The parents’ legitimate expectations were not violated.
· The decision was quasi-retroactive and not retroactive.
· Financial assistance for a parent caregiver was a benefit, not a right.[10]
Two judges provided concurring opinions and one a dissenting opinion. The judges who supported the decision expressed their view in separate, concurring opinions that access to judicial protection should also be granted to associations of individuals whose rights were breached:
When it comes to the protection of the fundamental rights and freedoms of citizens belonging to social groups in such a vulnerable social situation, the principle of effective judicial protection dictates that access to the court should also be ensured to citizens' associations that are ready to invest their human potential and material resources to fight for the interests of members of these groups before the court. For the same reasons, we believe that access to the Constitutional Court must also be provided to independent state bodies such as the institutions of Ombudsman or independent agencies for the protection of fundamental
rights.[11]
Majority of the Constitutional Court pointed out that
“When using social policy measures of this type, competent state authorities, and above all representative bodies of citizens, have a much wider possibility of assessing their adequacy, efficiency or usefulness, immanent to political governance and decision-making in democratic systems based on elections and change of government. Consequently, given their susceptibility to more frequent changes reflecting the political orientations of the options to which citizens have democratically given their trust to manage their communities, the legitimate interest arising in citizens in the context of the use of these measures cannot include the same level of long-term stability guaranteed by the social constitutional rights enshrined in the first category of constitutional social guarantees.[12]
Further, the Constitutional Court concluded that
… the contested Decision/21 does not have a retroactive effect which is strictly prohibited for general acts, but is a matter of quasi-retroactivity, i.e. of the legal effect of a general act permitted under certain conditions. … it is about the application of a legal rule to situations that have not been completed, i.e. “unjust or quasi-retroactivity”in which the new legal rule applies to relations created by legal acts created before its entry into force, but these relations are still legally existent or in the course of their realization.[13]
The Constitutional Court had no doubt whatsoever that this decision had a legitimate goal, as it enabled the
… redirection of funds to the extension of kindergarten capacities in the City of Zagreb, which would benefit the citizens of the City of Zagreb with less than three children, as well as citizens with three or more children, which basically constitutes a fairer distribution of these funds… Furthermore, when taking into account the negative effects of the parent caregiver measure, arising from the inability of the children of parent caregivers to attend kindergartens (increasing social inequality, risk of poverty, social exclusion) and the inability of parent caregivers to get a job while using the measure (long-term absence of women beneficiaries from the labor market, economic dependence, susceptibility to poverty in old age) and the fact that, based on Decision/22, beneficiaries will be provided employment measures, while their children can enroll in kindergarten, which will eliminate the factors that affect the occurrence of these negative effects.
The Constitutional Court ruled that there was no breach of proportionality of compensatory measures: The measure’sbeneficiaries are enabled to acquire new qualifications, knowledge, and skills (70% of the measure is financed by the City of Zagreb); increase their employability and possibility of starting their own business; and receive the benefits free of charge. In addition, they will receive family allowance (albeit decreased) during the entire period.
The dissenting opinion of Judge Šumanović expressed his profoundly and widely theory-based reasoning as follows:
The position of the majority was deeply and flagrantly wrong. …
… If the right is acquired, the legal situation is defined regardless of the fact that the exercise of the acquired right extends to the expiry of the period fixed by the administrative act.
…The authorities were undoubtedly authorized to abolish the existing and inherited measure “parent caregiver”pro futuro, with effect from the entry into force of the new general act and thus prevent the inflow of new users, but not to intervene in final administrative acts by their complete or partial abolition beyond the conditions prescribed by law.[14]
What happened later? Dr. Pokos, a demographer, explained that after the City of Zagreb abolished the parent caregiver measure, there was a sharp decrease in the number of third-born children and all subsequent live births by as much as 20%.
The explanation for such a drastic reduction, especially of third live births in the City of Zagreb, requires a more detailed analysis. Nevertheless, announcement of the abolition of the parent caregiver measure in the summer of 2021, immediately after the current Mayor Tomislav Tomašević came to power, undoubtedly played a major role in this.[15]
How do we conclude this topic? The parent caregiver measure was not well-tailored: it encouraged women to stay out of work and did not enable children to attend kindergarten. Hence, its abolition in the autumn of 2023 resulted in 800 children in Zagreb who were not enrolled in kindergarten and put their families under pressure to find other solutions in a very short time. Demographically, abolition of the measure likely caused a decrease in third live births and further children. Worst of all, it shattered the trust of citizens in family policy, thus diminishing the efficiency of possible future measures.
References
[1] Official Gazette of the City of Zagreb (Službeni glasnik Grada Zagreba), No. 16/16.
[2] Official Gazette of the City of Zagreb (Službeni glasnik Grada Zagreba), No. 19/16.
[3] Official Gazette of the City of Zagreb (Službeni glasnik Grada Zagreba), No. 10/18.
[4] Official Gazette of the City of Zagreb (Službeni glasnik Grada Zagreba), No. 20/21.
[5] Official Gazette of the City of Zagreb (Službeni glasnik Grada Zagreba), No. 29/21.
[6] Podloga za javnu raspravu – mjera roditelj odgojitelj, https://www.zagreb.hr/userdocsimages/demografija/Podloga%20za%20javnu%20raspravu_mjera%20roditelj%20odgojitelj_5%2011%202021.pdf (Accessed 19. 1. 2023.)
[7] Judgement of the High Administrative Court, No. Usoz-8/2022-68, 5.7. 2022.
[8] Judgement of the High Administrative Court, No. Usoz-149/2022-12, 13.03.2023.
[9] Ibid.
[10] Judgement of the Constitutional Court of the Republic of Croatia No, U-III-1744/2023 and others, 14.2.2023.
[11] Podupiruće izdvojeno mišljenje u odnosu na odluku i rješenje Ustavnog suda Republike Hrvatske u predmetu broj: U-III-1744/2023 i dr. od 14. studenoga 2023. (Concurring separate opinion in relation to the decision and judgement of the Constitutional Court of Croatia in case No. U-III-1744/2023 et alii, 14.11.2024, judges Kušan and Selanec.
[12] Judgement of the Constitutional Court of the Republic of Croatia No, U-III-1744/2023 and others, 14.2.2023.
[13] Ibid.
[14] Izdvojeno mišljenje u odnosu na odluku i rješenje Ustavnog suda Republike Hrvatske u predmetu broj: U-III-1744/2023 i dr. od 14. studenoga 2023. (Separate opinion in relation to the decision and judgement of the Constitutional Court of Croatia in case No. U-III-1744/2023 et alii, 14.11.2024, judge Šumanović.
[15] https://www.jutarnji.hr/vijesti/hrvatska/demografska-bomba-u-zagrebu-ukinuli-su-mjeru-roditelj-odgojitelj-evo-sto-se-dogodilo-15410474, accessed 29.1.2024.
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