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Unequal treatment of marriages and registered civil partnerships concerning survivor’s pensions under an occupational pension scheme (VBL) unconstitutional

Press Release No. 121/2009 of 22 October 2009

Order of 07 July 2009
1 BvR 1164/07

The constitutional complaint relates to the unequal treatment of marriages and registered civil partnerships concerning survivor's pensions under an occupational pension scheme for employees in the civil service according to the rules of the Supplementary Pensions Agency for Federal and Länder Employees (Versorgungsanstalt des Bundes und der Länder - VBL). Unlike the statutory pension scheme, the VBL's supplementary pension scheme does not pay a survivor's pension for registered civil partners. The complainant, who lives in a registered civil partnership, unsuccessfully challenged this before the civil courts.

The First Senate of the Federal Constitutional Court decided that the challenged court rulings violate the complainant's fundamental right to equal treatment under Article 3.1 of the Basic Law (Grundgesetz - GG). The last-instance ruling of the Federal Court of Justice (Bundesgerichtshof) was overturned in this respect, and the matter was referred back to the Federal Court of Justice.

In essence, the decision is based on the following considerations:

1. The general principle of equality (Article 3.1 GG) demands that all people be treated equally before the law. It also prohibits the exclusion of a favourable treatment that is contrary to equality in which a favourable treatment is granted to a group of persons while it is denied to another group of persons. Irrespective of its private-law nature, the VBL's rules are to be measured directly against the precept of equality of Article 3.1 GG because as a corporate body under public law, the VBL performs a public function.

2. The provisions on survivor's pensions in the VBL's rules (§ 38 VBLS) result in an unequal treatment between insured persons who are married and those who live in a registered civil partnership. A married insured has, as part of his or her own position under supplementary pensions law, a claim on his or her spouse receiving a survivor's pension in the case of the insured person's death. An insured person who has established a registered civil partnership does not acquire such a claim for his or her civil partner.

3. This unequal treatment of marriages and registered civil partnerships is not constitutionally justified.

a) The unequal treatment of married persons and registered civil partners under § 38 VBLS requires a strict standard for reviewing whether a sufficiently weighty reason of differentiation exists. A special need for justification follows from the facts that the unequal treatment of spouses and registered civil partners concerns the personal characteristic of sexual orientation and that the provision concerning survivor's pensions in the VBL's rules largely follows the provision of the Sixth Book of the Code of Social Law (Sozialgesetzbuch VI -SGB VI) concerning widow's and widower's pensions but abandons this link to the detriment of the registered civil partnership.

b) Making reference to marriage and its protection under the constitution (Art. 6.1 GG) is not sufficient here for justifying the unequal treatment. Viable factual reasons for an unequal treatment in the area of survivor's pensions in company pension schemes do not exist and in particular do not result from an inequality of the life situation of married couples and civil partners.

According to Article 6.1 GG, marriage and the family enjoy the special protection of the state. It is in particular the duty of the state to refrain from everything that damages or otherwise adversely affects marriage, and to promote marriage by suitable measures. In principle, the legislature is not barred from treating marriage more favourably than other ways of life. The provisions that treat marriage more favourably with regard to maintenance and pensions as well as under tax law can find their justification in the spouses' jointly shaping their path through life and in the responsibility for the partner which they have assumed in a permanent and legally binding manner.

Where giving marriage favourable treatment goes along with disadvantaging other ways of life even though they are comparable to marriage as regards the life situation that is regulated and the objectives pursued by the regulation, the mere reference to the requirement of protecting marriage does not justify such a differentiation. For the authority of giving favourable treatment to marriage does not give rise to a requirement contained in Article 6.1 GG to disadvantage other ways of life in comparison to marriage. It cannot be justified constitutionally to derive from the special protection of marriage a rule that such partnerships are to be structured in a way distant from marriage and to be given lesser rights. Beyond the mere reference to Article 6.1 GG, a sufficiently weighty factual reason is required here which, measured against the respective object and objective of regulation, justifies the unfavourable treatment of other ways of life.

c) No differences can be identified under non-constitutional law or factually which justify treating registered civil partners less favourably than spouses with regard to the VBL's survivor's pension.

The VBL's survivor's pension is a benefit from an occupational pension scheme and as such forms part of the remuneration. As regards the objective of granting remuneration, no differences can be identified between married employees and employees who live in a civil partnership. The same applies with regard to the pension character of the benefits from occupational pension schemes. The legislation concerning the obligations to provide maintenance within marriages and registered civil partnerships is almost identical, so that the same standards apply for measuring the maintenance requirement of a person entitled to maintenance and the maintenance gap arising upon the death of a person liable for maintenance.

A reason for differentiating between marriage and registered civil partnership can also not be found in the fact that married couples typically have a different pension requirement than civil partners because of gaps in their employment biography due to their bringing up of children. Not every marriage has children. Not every marriage is oriented towards having children. It cannot be assumed either that the role allocation in marriages is such that one of the spouses is considerably less occupation-oriented. Consequently, the image of the "breadwinner marriage", in which one of the spouses maintains the other, which no longer determines typical reality in society, cannot be regarded any longer as the yardstick for assigning survivor's benefits.

On the other hand, it also cannot be excluded that in registered civil partnerships the roles are allocated in such a way that one partner is more strongly oriented towards his or her occupation and the other partner more strongly towards the domestic sphere, including childcare. Children live in a large number of registered civil partnerships, especially in those of women. It is true that the proportion of registered civil partnerships with children is far lower than that of married couples; it is, however, by no means negligible.

In addition, possible child-raising periods or another individual pension requirement can be taken into account in a more specific manner irrespective of marital status, as is done in the law of the statutory pension system as well as in the VBL's rules.

4. Where general conditions of insurance, as in this case the VBL's rules, infringe Article 3.1 GG, this results, according to the civil courts' case-law, which is constitutionally unobjectionable, in the ineffectiveness of the terms concerned. Gaps in the regulation which arise thereby can be filled by way of a supplementary interpretation. The infringement of the principle of equality cannot be eliminated by the merely not applying § 38 VBLS because this would exclude survivor's pensions also for spouses. The regulation plan pursued with the survivor's pension scheme pursuant to § 38 VBLS can only be completed in such a way that the provision for spouses will, with effect from 1 January 2005, also be applied to registered civil partners.