Federal Constitutional Court - Press office -
Press release no. 59/2012 of 1 August 2012
Order of 19 June 2012 – 2 BvR 1397/09 –
Unequal treatment of registered civil partnerships and marriage in the
family allowance under civil service law unconstitutional
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/em>) 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.
This press release is also available in the original german version.
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