The City of Zagreb issued the Decision on financial assistance for the mother caregiver (majkaodgojiteljica) in 2016,[1] changed a month later to parent caregiver.[2]
A mother caregiver was defined as a female person who has given birth, adopted, cared for or has been entrusted with the care and upbringing of at least three children by a decision of the Social Welfare Center, of which the youngest child is not yet attending primary school.
The right to financial assistance under the above-mentioned decision could have been exercised by the mother caregiver or a like person if she was unemployed at the time of applying for financial assistance and continued to be unemployed while receiving it, and provided that children are not enrolled in kindergarten (with the exception of attending a mandatory pre-school program).
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, when the mother (or parent caregiver) got employed or when a child enrolled in kindergarten before starting the compulsory preschool program.
In 2018, the City of Zagreb amended this decision.[3] The most important change set up the amount of financial assistance to 65% of the average gross income in the City of Zagreb.
The above-mentioned measures were seen as pro-family and demographic measures. The other reason for introducing them was the fact that there were not enough kindergartens, so the lack of day-care facilities was compensated by the financial assistance for parent caregivers.
The status of parent caregiver did not mean employment status, but pension contributions were paid.
In the year 2021, the election brought political changes.
The new Zagreb mayor (green party) inherited a measure by which 5,800 mothers in Zagreb received about HRK 5,000 a month (approximately 660 euros) for three or more children (approximately 20,000 children in financial assistance users’ families). About HRK 40 million (approximately 5,3 million euros) had to be allocated monthly from the city budget.
The new city administration permanently abolished it for new users[4] and drastically cut it for existing ones on 8 September 2022.[5]
Under the previous decision, financial assistance was supposed to be received until the child reached the age of fifteen. However, this was shortened to the age of seven, and it was sharply cut from HRK 5,000 to 1,000 net (from 660 euros to 132 euros). The first reduction was planned to be implemented immediately (the income of the beneficiaries of this family measure would fall to 65 percent of the gross salary in the economy in Zagreb), with the second reduction to the net minimum wage from 1 April and, later, from 1 July of the same year (2023) to the amount of 50 percent of the minimum wage. From 1 October 2023, family assistance should cease for those beneficiaries whose youngest child has reached the age of seven by that time. For the other beneficiaries, the assistance ends when their child reaches the age of seven and in some other cases not so important for the purpose of this text.
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]: the demographic outcome of the measure aimed at parents who have 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, the financial resources spent on the measure could have been distributed more fairly for all children in the City of Zagreb.
The beneficiaries of the measure initiated administrative proceedings. The High Administrative Court first suspended the measure until the final judgment.
Following that, the High Administrative Court, after conducting the proportionality test, 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 beneficiaries of the financial assistance, i.e. parent caregivers, and this decision was not retroactive considering their property rights, on which users had legitimate expectations. Nevertheless, the City of Zagreb failed to strike a balance between the public interest and the protection of the legitimate expectations of the beneficiaries of the financial assistance, i.e. the parent caregivers, and imposed an excessive burden (primarily in terms of inadequate adjustment and in too short a period.
On 8 September 2022, the City of Zagreb adopted a "new" decision that introduced several compensatory measures (a gradual reduction of the amount of financial assistance), as the legality, regularity, and expediency of the same measures was the subject of another proceeding, which ended with the final judgment of the High Administrative Court of the Republic of Croatia of 27 February2023.[8]
The High Court rejected further complaints by parent caregivers in the second judgment, 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."
Parents individually and through parents caregivers’ associations lodged a constitutional complaint contending that the decision of the High Administrative Court breached the lawfulness principle.
The Constitutional Court analyzed the complaints and decided that:
only individuals whose rights were allegedly breached were entitled to lodge the constitutional complaint,
that parent caregivers civil associations were not entitled to do it,
that the decision of the High Administrative Court was not unlawful,
that legitimate expectations of parents were not violated,
the decision was quasi-retroactive, not retroactive,
that financial assistance for a parent caregiver was a benefit, not a right.[9]
Two judges had concurring opinions and one a dissenting opinion. The judges who supported the decision expressed the view in their 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.”[10]
The 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.”
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.”
For 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, as the beneficiaries of the measure are enabled to acquire new qualifications, new knowledge and skills (the measure is financed 70% by the City of Zagreb), increasing their employability and possibility of starting their own business, this measure is free of charge; in addition, during the entire period they receive family allowance (albeit decreased).
The dissenting opinion of judge Šumanović in his profoundly and widely theory-based reasoning expressed the view that “the position of the majority was deeply and flagrantly wrong.” He argued that “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.” He added that “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.”
What happened later? A demographer, Dr. Pokos explained that after the City of Zagreb abolished the parent caregiver measure, there was a sharp decrease in the birth of third-born and all subsequent live births, by as much as 20%.
The explanation of the reasons for such a drastic reduction, especially the third live birth in the City of Zagreb, requires a more detailed analysis, but undoubtedly, the announcement of the abolition of the parent caregiver measure in the summer of 2021, i.e. immediately after the coming to power of the current mayor Tomislav Tomašević, played a major role in this.[11]
How to conclude this text? The parent caregiver measure was not very well tailored: it encouraged women to stay out of work and did not enable children to attend kindergartens. Hence, its abolition in autumn 2023 had 800 children in Zagreb not enrolled in kindergarten and left families under pressure to find other solutions in a very short time. Demographically, the abolition of the measure very probably caused a decrease in the birth of third and further children. But worst of all, it shattered the trust of citizens in family policy and thus diminished 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] Judgement of the Constitutional Court of the Republic of Croatia No, U-III-1744/2023 and others, 14. 2. 2023.
[10] 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 judgment of the Constitutional Court of Croatia in case No. U-III-1744/2023 et alii, 14 November 2024, judges Kušan and Selanec.
[11] https://www.jutarnji.hr/vijesti/hrvatska/demografska-bomba-u-zagrebu-ukinuli-su-mjeru-roditelj-odgojitelj-evo-sto-se-dogodilo-15410474, accessed 29. 1. 2024.
Comments