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The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database.
Please cite the abstract as follows:
Abstract of the Federal Constitutional Court’s Order of 28 April 2011, 1 BvR 1409/10 [CODICES]
Abstract
Third Chamber of the First Senate
Order of 28 April 2011
1 BvR 1409/10

Headnotes (non-official):

Not taking maternity protection times into account in supplementary occupational pension provision is unconstitutional.

Summary:

I.

The supplementary pension facility for public-sector employees in Germany, the Versorgungsanstalt des Bundes und der Länder (hereinafter: “VBL”) operates retirement, incapacity and surviving dependants’ pension schemes for employees of its participating employers via private-law insurance. These schemes supplement pensions that are based on the general statutory pensions insurance. The VBL’s supplementary pensions scheme is defined in greater detail in the Bylaws (Satzung) of the VBL. Pursuant to the law applicable until 31 December 2001, only employees who complied with a waiting period of 60 so-called contribution months were entitled to occupational retirement benefits or insurance-based pension. A contribution month was defined as a calendar month for which the employer pays a contribution for at least one day, towards a recurrent renumeration to which a mandatory supplementary pension scheme applies; thus, the employee must have received a taxable wage as defined in the VBL’s Bylaws. Since maternity benefits are tax free, no contributions were paid by the employer for maternity protection time, pursuant to the old law. As a consequence, such periods of maternity protection were not taken into account as a contribution month. However, pursuant to a special provision contained in the Bylaws, all sickness times during which an employee received wages based on statutory requirements, or an additional sickness benefit pursuant to collective labour agreements, were counted as contribution times.

 

The applicant was a public-sector employee, insured with the VBL via her employer. She was in maternity protection, at the time (1988) prescribed by law for roughly three months. The VBL denied her any entitlement to an occupational pension. It counted a total of 59 contribution months, and hence incompletion of the required waiting period. The VBL felt unable to count her maternity protection period towards the contribution. The action lodged by the applicant for a finding that the VBL should take the maternity protection times into account was unsuccessful before the Local Court and, on an appeal on points of fact and law, before the Regional Court.

 

II.

The Federal Constitutional Court ruled that the judgments of the regular courts violate the ban on gender discrimination under the first sentence of Article 3.3 of the Basic Law. The judgment of the Regional Court has been reversed and the case remanded to the court for a new ruling.

 

The decision is based on the following key considerations:

 

As an institution under public law, the VBL carries out a public task. Hence, its bylaws must adhere to the fundamental right to equality. However, the failure to count maternity protection times as contribution months for the supplementary pensions of the VBL regulated in the bylaws entrenches unequal treatment of mothers in two ways. First, women with maternity protection times are treated different from male employees. The career biographies of the latter as public-sector employees are not interrupted by maternity protection times that are mandatorily prescribed by law. Second, there is also unequal treatment of women in maternity protection here vis-à-vis those men and women insured with the VBL who receive sickness benefits from the VBL and additional sickness benefits from their employers. Since employers continue to pay contributions in periods in which wage payment is continued, and when additional sickness benefits are drawn, such sickness periods are fully counted as months contributing to the supplementary pension. Different from that, there is no such arrangement concerning maternity protection.

 

This unequal treatment is based on gender. There are no imperative reasons to justify the disadvantage. The legislature does, in exempting employers from contributions towards maternity protection times, pursue the objective of de facto equality that is mandated by the Basic Law itself (second sentence of Article 3.2 of the Basic Law). It creates an incentive to not refrain from employing women of child-bearing age. However, this decision targeting the structure of employment may not be implemented via arrangements such as that contained in the VBL’s Bylaws which place mothers at a disadvantage. The leeway granted to the legislature, and also to the VBL, in distributing the burdens of maternity protection does not justify discriminating against mothers through the back door. Also, there are no further reasons which might justify the unequal treatment of mothers regarding pension rights.

 

The violation of the prohibition of discrimination on grounds of gender has the effect that the applicant’s maternity protection times have not been counted towards the waiting period in the context of the supplementary occupational pensions of the VBL. The constitution however requires equal treatment of those parties insured for pension benefits who claimed maternity protection, and those for whom contributions were paid by employers during illness. This can only be achieved retroactively when the maternity protection time is taken into account as contribution months towards the pension scheme.

Languages available

Additional Information

ECLI:DE:BVerfG:2011:rk20110428.1bvr140910

Reference

BVerfGK 18, 401 - 414

Please note that only the German version is authoritative. Translations are generally abriged.