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Unequal treatment of registered civil partnerships and marriage in the family allowance under civil service law unconstitutional

Press Release No. 59/2012 of 01 August 2012

Order of 19 June 2012
2 BvR 1397/09

The Second Senate of the Federal Constitutional Court ruled that the unequal treatment of (same-sex) registered civil partnerships and marriage in the family allowance under civil service law (§ 40.1 no. 1 of the Federal Civil Servants' Remuneration Act (Bundesbesoldungsgesetz - BBesG)) has been incompatible with the general principle of equality under Article 3.1 of the Basic Law (Grundgesetz - GG) since 1 August 2001.

The proceedings are based on the constitutional complaint of a federal civil servant who has been living in a registered civil partnership since 2002, and whose application for payment of family allowance was rejected in 2003. The court action which he lodged against this was unsuccessful in the administrative courts. Since the unequal treatment of marriage and civil partnership in federal civil servants' remuneration law was retroactively eliminated during the pending constitutional complaint proceedings, namely as per 1 January 2009, the Federal Constitutional Court only had to rule on the constitutionality of the law as it stood up to this point in time. The Senate further ruled that the impugned decisions based on the unconstitutional legal provision violate the complainant's fundamental right under Article 3.1 GG, and remitted the case to the Higher Administrative Court (Verwaltungsgerichtshof) for a new decision.

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

1. The general principle of equality under Article 3.1 GG requires that all persons be treated equally before the law, as well as that equal treatment be applied to what is essentially alike and unequal treatment to what is essentially different. It is hence also prohibited to rule out favourable treatment that is contrary to equality where favourable treatment is granted to one group of individuals but denied to another.

The legislature is, as a rule, strictly bound by the requirements of the principle of proportionality in the event of unequal treatment of groups of individuals; this also applies if unequal treatment of situations leads (only) indirectly to unequal treatment of groups of individuals. The requirements as to the justification of unequal treatment of groups of individuals become stricter the more the personal characteristics permitting a distinction approximate those listed in Article 3.3 GG, that is the greater the risk is that unequal treatment related to them leads to discrimination against a minority. This is for instance the case with distinction by sexual orientation.

Article 6.1 of the Basic Law places marriage and the family under the special protection of the state. Hence, the constitution guarantees not only marriage as an institution, but - as a binding value decision for the entire sphere of private and public law relating to marriage and the family -requires that special protection be provided through the state order. As an institution reserved solely to a union between a man and a woman, marriage is afforded independent constitutional protection by Article 6.1 GG. In order to do justice to this mandate of protection, it is particularly a task of the state to omit everything which damages or otherwise impairs marriage, and to promote it through appropriate measures.

With regard to the constitutional mandate of protection and promotion, the legislature is entitled as a matter of principle to especially favour marriage as a legally binding, long-term relationship between couples involving particular mutual liability (for instance in case of illness or destitution) vis-à-vis other living arrangements. The value decision of Article 6.1 GG constitutes a material reason for differentiation which is primarily suited to justify favouring marriage in comparison with other communities that are characterised by a lower degree of mutual obligation.

If the privileged status of marriage is accompanied by disadvantageous treatment of other living arrangements which are comparably legally binding although these are comparable in accordance with the circumstances regulated and the purposes pursued by the legislation that was enacted, merely referring to the precept of protecting marriage however does not justify making such a distinction. In such cases, there is a need over and above simply invoking Article 6.1 GG for a sufficiently weighty factual reason which, in comparison with the respective subject-matter and objective of the legislation, justifies the disadvantageous treatment of these other living arrangements.

2. The special protection of marriage in Article 6.1 GG is not alone able to justify the unequal treatment of marriage and registered civil partnerships. There are also no further factual reasons justifying placing married civil servants in a more advantageous position.

Since the introduction of the civil partnership in 2001, there have been few differences in the fundamental structures of the institutions of marriage and civil partnership under family law. In particular, the extent of the legally binding nature and the mutual liabilities in marriage and civil partnership have been largely approximated since the Civil Partnerships Act (Lebenspartnerschaftsgesetz) of 2001. With the Act Revising the Law on Civil Partnerships (Gesetz zur Überarbeitung des Lebenspartnerschaftsrechts) of 15 December 2004, which came into force as per 1 January 2005, the law on registered civil partnerships was approximated even closer to the law on marriage and to a large degree referred to the provisions on marriage.

Viable factual reasons justifying the unequal treatment of married civil servants and those living in registered civil partnerships do not manifest themselves from the purpose of the provision contained in § 40.1 no. 1 of the Federal Civil Servants' Remuneration Act. The spouse-related part of the family allowance takes on a "social, namely family-related equalisation function" with which, in the interest of the functionality of the system of professional civil servants and judges, is intended to contribute towards the independence also of married civil servants. Where § 40.1 no. 1 of the Federal Civil Servants' Remuneration Act grants to married civil servants a right to Grade 1 family allowance, it is intended to equalise de facto additional requirements of married civil servants above all in comparison to unmarried civil servants. This purpose of the statute cannot justify granting privileges to married civil servants in comparison to those living in a registered civil partnership because there is nothing to suggest that the greater need to be equalised with § 40.1 no. 1 of the Federal Civil Servants' Remuneration Act does not equally exist in the case of civil servants living in a registered civil partnership.

The legislature is obliged to eliminate the violation of the Constitution that has been ascertained for civil servants living in a registered civil partnership who have asserted their right to disbursement of the family allowance in good time, retroactively with effect as per 1 August 2001, the date of reference being the time of the introduction of the institution of the registered civil partnership.