Federal Constitutional Court - Press office -
Press release no. 36/2010 of 2 June 2010
Order of 14 April 2010 – 1 BvL 8/08 –
Unequal Treatment of Employee Groups upon the Privatisation
of Clinics in the City of Hamburg Unconstitutional
In 1995 the Betrieb Landeskrankenhäuser Hamburg (LBK Hamburg), a public
law institution with legal capacity, was established under the
responsibility of the Free and Hanseatic City of Hamburg. The employment
relationships of the employees who until then had worked in the
city-owned hospitals were transferred to LBK Hamburg. In the event of
privatisation all employees in the city clinics were granted the right
to return to civil service.
As of 1 January 2000, LBK Hamburg assigned its wholly-owned subsidiary
C. GmbH to provide the cleaning services in the hospitals. The
employment relationships of the workers in the cleaning services were
transferred to C. GmbH by way of a partial transfer of business in
accordance with § 613a of the German Civil Code (Bürgerliches Gesetzbuch
– BGB).
At the beginning of 2005 the Betriebsanstalt LBK Hamburg was established
and converted into a limited liability company, LBK Hamburg GmbH. Based
upon legislation, this company became the employer of a significant
portion of the employees already transferred in 1995 from the City to
LBK Hamburg, however, this did not include those workers in the cleaning
services still employed by C. GmbH. Initially the City remained the
majority shareholder of LBK Hamburg GmbH.
In § 17 sentence 1 of the Law on the Hamburg Pension Fund – Public Law
Institution (Gesetz über den Hamburgischen Versorgungsfonds – Anstalt
öffentlichen Rechts – HVFG) from 21 November 2006, the right to return
to civil service granted to employees in the event of a sale of the
majority was now limited to employees of LBK Hamburg GmbH. On 1 January
2007, the majority of the shares in LBK Hamburg GmbH were transferred
from the City to a private entity.
The plaintiff in the original proceedings was employed in 1987 as a
cleaner at the Allgemeines Krankenhaus Altona. In 1995 her employment
relationship was transferred from the City to LBK Hamburg and from 2000
onward she was an employee of C. GmbH. She sued the City for a
declaration that she had the right to return to civil service. The
Higher Labour Court (Landesarbeitsgericht) submitted the question of
whether § 17 HVFG is compatible with the Basic Law (Grundgesetz – GG) to
the Federal Constitutional Court through the procedure of a concrete
review of a statute (konkrete Normenkontrolle).
The First Senate of the Federal Constitutional Court decided that § 17
sentence 1 HVFG is incompatible with both the general principle of
equality in Article 3.1 GG as well as with Article 3.2 GG. The state
legislature has until 31 December 2010 to enact a new law.
In essence, the decision is based on the following considerations:
§ 17 sentence 1 HVFG leads to unequal treatment within the group of
employees whose employment relationships were transferred from the City
to LBK Hamburg in 1995. Originally the cleaning staff were granted the
right to return to civil service in the event of privatisation, as were
the other employees of the city clinics upon the establishment of LBK
Hamburg. However, this right was repudiated by § 17 sentence 1 HVFG
because it was limited to the employees of LBK Hamburg GmbH.
This unequal treatment is not justified and, thus, is incompatible with
Article 3.1 GG. That the cleaning staff were employed by a company
organised under private law prior to the privatisation that triggered
the right to return pursuant to § 17 sentence 1 HVFG is not a
justifiable reason for discriminating against the cleaning staff.
Nothing different applies to the employees who fulfil the legislative
prerequisites for the right to return to the City. From the beginning of
2005 onward their employer likewise was a limited liability company.
The City’s arguments that the cleaning staff could have maintained their
civil service status at the time of their transfer on 1 January 2000, by
stating their objection to the change of employer pursuant to § 613a.6
BGB, does not present any relevant legal difference to the other
employees. The cleaning staff cannot be presumed to have consciously
decided in 2000 to not remain in the civil service. Rather, they merely
tolerated without objection the partial transfer of business from LBK
Hamburg to C. GmbH, which then was still controlled by the City. In this
way they complied with the City’s restructuring measures in the hospital
area and, thus, even demonstrated their solidarity with the City’s
personnel planning. Moreover, at the point in time that LBK Hamburg was
no longer their employer, the legal situation was identical for both
employee groups. The other employees also could have maintained their
employment relationship with the City by stating their objection upon
the conversion of LBK Hamburg to a limited liability company, because
the state legislature had provided for the corresponding applicability
of § 613a.6 BGB. There also is no relevant legal difference in the fact
that in January 2000 the cleaning staff would have had significant cause
for objection to the change of employer while, however, the other
employees did not at the turn of the year 2004/2005. This is because
subsequent to the partial transfer of business the cleaning staff only
had an actual, permanent employment opportunity with C. GmbH. Thus, one
cannot say that the cleaning staff would have had an alternative that
would not have caused them an appreciable legal or economic risk.
The discrimination against the cleaning staff also cannot persuasively
be supported by the fact that building cleaning is not a service that
can be directly allocated to health care. The City privatised all areas
of the hospitals and did not see a necessity for leaving individual
areas in the public sector. Thus, it is not persuasive that only certain
employee groups are permitted to demand continued employment in the
civil service.
Furthermore, the rule in § 17 sentence 1 HVFG is incompatible with
Article 3.2 GG because it leads to gender discrimination. By limiting
the right to return, the state legislature disadvantaged female
employees disproportionately and without justifiable legal grounds. The
gender-specific effect of the special rule for cleaning staff comes from
the fact that it primarily impacts women, in the amount of 93.5 %. This
percentage is significantly higher than the percentage of women in the
clinic area, which is already high.
This press release is also available in the original german version.
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