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Decision regarding the transfer of entitlements and expectancies under supplementary and special pension systems of the GDR
Press Release No. 54/2010 of 28 July 2010
Order of 6 July 2010
1 BvL 9/06
The pension system in the GDR was based on a general pensions insurance scheme and a voluntary supplementary pensions system as well as a variety of special security systems for different groups of persons, including a supplementary pension system for full-time employees of the state machinery.
The Unification Treaty (Einigungsvertrag) of 31 August 1990 provides that entitlements and expectancies under supplementary pension systems of the GDR must be transferred to the statutory pension insurance system. However, the aim in this connection was to "abolish unfair benefits and reduce excessive benefits" as well as to ensure that the entitlements and expectancies were not treated more favourably than comparable entitlements and expectancies under other public pensions systems. These requirements were implemented in reunited Germany through the Act on the Transfer of Entitlements and Expectancies under Supplementary and Special Pensions Systems of the German Democratic Republic (Gesetz zur Überführung der Ansprüche und Anwartschaften aus Zusatz- und Sonderversorgungssystemen des Beitrittsgebiets, Transfer of Titles and Expectancies Act - AAÜG). The Federal Constitutional Court held in its decisions of 28 April 1999 (see Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts - BVerfGE 100, 59) and of 23 June 2004 (see BVerfGE 111, 115) that the legislature's prior rules on limiting the income that could be taken into account of members of "state or old-regime" pension systems or persons in "state or old-regime" positions who enjoyed privileges in respect of their income was unconstitutional. The legislature subsequently amended § 6.2 AAÜG through the First Amendment Act Amending the Transfer of Entitlements and Expectancies under Supplementary and Special Pensions Systems of the German Democratic Republic Act (1. AAÜG-Änderungsgesetz) of 21 June 2005. The new § 6.2 AAÜG sets a limit for income from periods of membership of certain supplementary pension systems and, in addition, restricts these reductions to certain, individually listed groups of persons who had high positions in the party and state machinery of the GDR. Thus, for example, § 6.2 no. 4 AAÜG covers employment as a "minister, deputy minister or voting member of the State Council or Council of Ministers or their respective deputies".
The plaintiffs in both original proceedings were employed for a while in the GDR as minister of the environment and water resource management and deputy minister of light industries respectively. They appealed to the social courts on account of the reductions in their income in relation to these periods. These courts were of the opinion that the new limitation rule was also unconstitutional since it violated Article 3.1 and Article 14 of the Basic Law (Grundgesetz - GG).
The First Senate of the Federal Constitutional Court decided that § 6.2 no. 4 AAÜG, which had been submitted for review, is constitutional.
In essence, the decision is based on the following considerations:
The reductions in income resulting from § 6.2 no. 4 AAÜG are compatible with the protection of property under Article 14 GG. They only apply to entitlements and expectancies established in the GDR under supplementary and special pensions systems if the conditions in the Unification Treaty are satisfied and subject to the requirement that unfair benefits are abolished and excessive benefits are reduced. The legislature was granted a particularly broad discretion for the transfer of entitlements and expectancies acquired in the accession territory to the statutory pension insurance system, and it did not exceed it when amending § 6.2 no. 4 AAÜG. The pension reductions arising from the amendment are justified by the legislative goal, namely to prevent the perpetuation under pension law of a system in which people awarded themselves privileges. § 6.2 no. 4 AAÜG covers a very specific and narrow group of persons who held high-level state positions. The legislature was entitled to assume that this small group of persons who held key positions in the GDR's party and state machinery had acquired such positions through their partiality and loyalty to the old regime, and that their salaries and pensions particularly rewarded this attitude. Ministers in the GDR were selected by the politburo of the Socialist Unity Party of Germany (Sozialistische Einheitspartei Deutschlands - SED) primarily according to political and ideological criteria. Consequently, the legislature's conclusion that the salaries paid to such leaders were to a certain extent a reward for political conformity and unconditional support of the Socialist Unity Party of Germany's claim to power rather than based on performance is not objectionable.
The objection that such pension reductions amounted to a "punitive pension law" on the part of the Federal German legislature has no basis. § 6.2 AAÜG does not punish the previous behaviour of the persons concerned. Instead it prevents privileges obtained under the GDR system being perpetuated under pension law in the Federal Republic of Germany. Nor is the limitation of the pension reductions to the period in which the persons concerned held their positions disproportionate; the plaintiffs' remaining pensions are still considerably higher than the average pension of a former GDR citizen.
In addition, the principle of equality before the law pursuant to Article 3.1 GG has been upheld. The disadvantaging of the group of persons specified in § 6.2 no. 4 AAÜG as compared with former GDR citizens with a general pension entitlement and in particular as compared with other members of supplementary and special pension systems who were not subject to the reduction mechanism in § 6.2 AAÜG is justified on objective grounds. It cannot be generally assumed that membership of one of the supplementary or special pension systems was always associated with payment of an excessive salary that was not performance-based. The reason for this is that membership extended to a variety of different professional groups and groups of persons. These included full-time employees of the state machinery as well as members of the scientific and technical intelligentsia, physicians and dentists with their own surgeries, teachers and university professors as well as artists employed in radio, television and film. Instead the legislature restricted the salary reductions in § 6.2 no. 4 AAÜG to a group of persons who undoubtedly received salaries which were in part not performance-based, but instead represented a premium for loyalty to the regime. Thus they profited from unjust advantages. The narrow categorisation chosen by the legislature is constitutionally unobjectionable.