Federal Constitutional Court - Press office -

Press release no. 17/2012 of 6 March 2012

Order of 17 January 2012 – 2 BvL 4/09 –

Reduction of special payments for Deutsche Telekom civil servants 
held constitutional


In the course of the reform of Deutsche Bundespost, the enterprise was 
split up by creating the Postdienst, Postbank and Telekom special funds; 
in 1994, the special funds were transformed into stock corporations. The 
transformation took place on the basis of Article 143b that had been 
newly incorporated into the Basic Law (Grundgesetz – GG). In the first 
sentence of its subsection 3, Article 143b GG provides that federal 
civil servants (Bundesbeamte) formerly employed by Deutsche Bundespost 
shall “without prejudice to their legal status” be given positions in 
the enterprises succeeding to it (Deutsche Post AG, Deutsche Postbank AG 
and Deutsche Telekom AG). The transfer of the federal civil servants was 
regulated in the Staff Legal Provisions Act (Postpersonalrechtsgesetz – 
PostPersRG) enacted for this purpose. Initially, the civil servants 
employed by the successor companies of Deutsche Bundespost had a right 
to receive non performance related special payments according to the 
provisions applying to all federal civil servants. With effect from 1 
January 2004, the amendment of § 10 PostPersRG abolished, according to § 
10.1 PostPersRG, the right of the federal civil servants employed by the 
Bundespost successor companies to receive special payments awarded 
according to the Federal Special Payments Act 
(Bundessonderzahlungsgesetz). From 2004, the Act awarded to all other 
federal civil servants an annual special payment to the amount of 5% of 
their annual income. The Telekom Special Payments Ordinance 
(Telekom-Sonderzahlungsverordnung) established a right of the civil 
servants employed by Deutsche Telekom AG (Telekom) to received special 
payments; for the vast majority of Telekom civil servants, however, it 
fell short of the amount to which they would have been entitled 
according to the Federal Special Payments Act. Before the amendment, the 
Telekom civil servants’ average normal working week had been reduced 
from 38 to 34 hours with effect from 1 April 2004. 

In the three original proceedings, which had been combined for a joint 
ruling, three Telekom civil servants sued for the payment of the 
difference between the special payment awarded according to the Federal 
Special Payments Act and the lower payment awarded according to the 
Telekom Special Payments Ordinance. The Federal Administrative Court 
(Bundesverwaltungsgericht) submitted to the Federal Constitutional Court 
the question of the constitutionality of § 10.1 PostPersRG. It holds the 
view that the provision infringes the general principle of equality 
because, by being excluded from the award of an annual special payment, 
the Telekom civil servants are without a valid reason placed at a 
disadvantage in comparison to other federal civil servants. 

The Second Senate of the Federal Constitutional Court ruled that § 10.1 
PostPersRG is compatible with the Basic Law. The abolition of the 
special payment that is effected by the provision does not infringe the 
principle of equal pay enshrined in Article 3.1 GG in conjunction with 
Article 33.5 GG. 

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

1. With regard to the remuneration of civil servants, it follows from 
the traditional principles of the permanent civil service guaranteed in 
Article 33.5 GG that as a rule, civil servants of a given public sector 
employer who have the same or comparable posts within the same career 
structure are to receive the same pay. However, the principle of equal 
pay does not apply without reservations. Unequal treatment is 
permissible if it is objectively justifiable against the standard of the 
general principle of equality under Article 3.1 GG. 

The principle of equal pay also applies in regard to the civil servants 
formerly employed by Deutsche Bundespost in comparison to the other 
federal civil servants. This is because in its first sentence, Article 
143b.3 GG not only guarantees them the mere status as civil servants but 
also the overall legal position of civil servants that is connected with 
the status and derived from it. This includes the federal civil 
servants’ right to equal pay. The continued employment in a (private) 
successor company of Deutsche Bundespost is not intended to result in 
any curtailment of the legal positions that concern their office with 
regard to their status as civil servants. This does not rule out, 
however, that reasons which justify unequal treatment with regard to 
other civil servants are derived from the special characteristics of the 
civil servant’s tasks in a private enterprise. Article 143b.3 GG 
sentence 1 does not provide any protection going beyond the protection 
of status. Hence it does not protect the civil servants of the 
Bundespost successor companies from an amendment or abolition of the 
civil servants’ legal positions that are established under 
non-constitutional law. Such protection would result in a privileged 
treatment in comparison to that of the other federal civil servants 
which would not be justifiable by the privatisation or otherwise; other 
civil servants as well merely have the right to equal treatment that is 
enshrined in Article 3.1 GG in conjunction with Article 33.5 GG, a right 
which can be restricted for objective reasons of sufficient weight. 

2. The provision of § 10.1 PostPersRG is compatible with the equal-pay 
principle because the unequal treatment effected by the abolition of the 
special payment of the civil servants of the Bundespost successor 
companies in comparison to that of the other federal civil servants can 
rely on an objective and sufficiently weighty reason for 
differentiation. 

The objective pursued with the abolition of the special payment, namely 
to strengthen the Bundespost successor companies’ competitiveness, is 
sufficiently weighty as to justify unequal treatment. According to 
Article 87f.1 GG, the Federation shall ensure the availability of 
adequate and appropriate postal and telecommunications services 
throughout the federal territory to prevent an undersupply of the 
population during and after the privatisation of the posts and 
telecommunications sector. Measures to abolish existing obstacles to 
functioning competition therefore appear necessary and permissible as 
manifestations of the federal task of securing infrastructure. 
Furthermore, the legislature’s assessment that a mitigation of the 
Bundespost successor companies’ disadvantages in the area of personnel 
management in comparison to other private enterprises is suitable and 
necessary for creating comparable and fair conditions of competition is 
constitutionally unobjectionable. 

The Telekom civil servants’ unequal treatment effected by the reduction 
of the special payment was also not disproportionate. The federal 
legislature’s balancing of its infrastructure-related obligations 
arising from the constitution and its guarantee responsibility under 
civil-service law for the former Deutsche Bundespost civil servants is 
not inappropriate. The possibility, created according to § 10.2 
PostPersRG, of making separate arrangements with regard to 
performance-related pay for the civil servants of the Bundespost 
successor companies, compensated, partially at least, for the abolition 
of the special payment according to the Federal Special Payments 
Ordinance. Apart from that, it has to be taken into account when 
reviewing proportionality that the weekly working hours of the Telekom 
civil servants affected by the abolition of the special payment had been 
reduced. 
In spite of the close connection with the reduction of working hours, § 
10.1 PostPersRG also does not infringe the ban on involuntary part-time 
work of civil servants. This is not a case of part-time work simply 
because the reduced weekly working hours are not a fraction of the 
normal working hours but are indeed the new normal working hours. Above 
all, under the law on remuneration, part-time work would have to be 
reflected in a corresponding reduction of the basic salary. In the 
instant case, however, the basic salary was unaffected by the reduction 
of the working hours. 
Finally, the review of proportionality has to take into account that the 
abolition of the special payment concerns a component of remuneration 
which, within the limits of a maintenance that all in all is in keeping 
with the office (amtsangemessene Alimentation), is in principle at the 
free disposal of the legislature enacting laws on remuneration. 


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