Federal Constitutional Court - Press office -

Press release no. 54/2010 of 28 July 2010

Order of 6 July 2010 – 1 BvL 9/06, 1 BvL 2/08 –

Decision regarding the transfer of entitlements and expectancies under
supplementary and special pension systems of the GDR


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. 


This press release is also available in the original german version.