H e a d n o t e s

to the Order of the Second Senate of 24 November 1998

– 2 BvL 26/91 –

– 2 BvL 5/96 –

– 2 BvL 6/96 –

– 2 BvL 7/96 –

– 2 BvL 8/96 –

– 2 BvL 9/96 –

– 2 BvL 10/96 –

– 2 BvL 3/97 –

– 2 BvL 4/97 –

– 2 BvL 5/97 –

– 2 BvL 6/97 –

1. 1. The employer is obliged on the basis of the principle of the state’s obligation to take care of civil servants’ welfare (Article 33.5 of the Basic Law, Grundgesetz – GG) to pay maintenance to civil servants in keeping with their office. This also encompasses the duty to make realistic allowance for the maintenance obligations incumbent on a civil servant by virtue of his or her family. Hence, the employer not lastly allows for the task of the permanent civil service to guarantee a stable, law-abiding administration in the interplay of political forces (confirmation of Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 44, 249; 81, 363).

2. 2. The remuneration of married civil servants with more than two children entitled to maintenance did not meet these requirements from 1988 to 1996. A general retroactive remedy of the violation of the constitution is however not necessary with regard to the specific characteristics of employment as a civil servant (as in BVerfGE 81, 363).

FEDERAL CONSTITUTIONAL COURT

– 2 BvL 26/91 et al.–

IN THE NAME OF THE PEOPLE

In the proceedings
for
constitutional review

of:

– 2 BvL 26/91 –,

– 2 BvL 5/96 –,

– 2 BvL 6/96 –,

– 2 BvL 7/96 –,

– 2 BvL 8/96 –,

– 2 BvL 9/96 –,

– 2 BvL 10/96 –,

– 2 BvL 3/97 –,

– 2 BvL 4/97 –,

– 2 BvL 5/97 –,

– 2 BvL 6/97 –,

– 2 BvL 10/96 –,

the Federal Constitutional Court – Second Senate –

with the participation of Justices

President Limbach,

Kirchhof,

Winter,

Sommer,

Jentsch,

Hassemer,

held on 24 November 1998:

1. 1. a) Article 1 § 1 in conjunction with Annex 2, as well as Article 6 § 5 sentence 1 of the 1987 Act on Adjustment of Salaries and Pensions in the Federation and the Laender (1987 Federal Remuneration and Pensions Adjustment Act) of 6 August 1987 (BGBl I p. 2062) in conjunction with Article 14 § 3 of the Act Reforming Public Service Law (Reform Act) of 24 February 1997 (BGBl I p. 322),

2. b) Article 1 § 1 in conjunction with Annex 2, as well as Article 10 § 4.1 of the 1988 Act on Adjustment of Salaries and Pensions in the Federation and the Laender of 20 December 1988 (1988 Federal Remuneration and Pensions Adjustment Act) (BGBl I p. 2363) in conjunction with Article 14 § 3 of the Act Reforming Public Service Law (Reform Act) of 24 February 1997 (BGBl I p. 322),

3. c) Article 1 § 1 in conjunction with Annex 2, as well as Article 10 § 4.1 of the 1988 Act on Adjustment of Salaries and Pensions in the Federation and the Laender of 20 December 1988 (1988 Federal Remuneration and Pensions Adjustment Act) (BGBl I p. 2363) in the version applicable from 1 January 1990,

4. d) Article 1 § 1 in conjunction with Annex 2, as well as Article 10 § 5.1 of the 1991 Act on Adjustment of Salaries and Pensions in the Federation and the Laender (1991 Federal Remuneration and Pensions Adjustment Act) of 21 February 1992 (BGBl I p. 266),

5. e) Article 1 in conjunction with Annex 2, as well as Article 12.1 of the 1992 Act on Adjustment of Salaries and Pensions in the Federation and the Laender (1992 Federal Remuneration and Pensions Adjustment Act) of 23 March 1993 (BGBl I p. 342),

6. f) Article 1 in conjunction with Annex 2, as well as Article 5 § 3.1 of the 1993 Act on Adjustment of Salaries and Pensions in the Federation and the Laender (1993 Federal Remuneration and Pensions Adjustment Act) of 20 December 1993 (BGBl I p. 2139),

7. g) Article 1 in conjunction with Annex 2, as well as Article 9 § 3.1 of the 1994 Act on Adjustment of Salaries and Pensions in the Federation and the Laender of 24 August 1994 (1994 Federal Remuneration and Pensions Adjustment Act) (BGBl I p. 2229), and

8. h) Article 1 in conjunction with Annex 2, as well as Article 15.1 of the 1995 Act on Adjustment of Salaries and Pensions in the Federation and the Laender (1995 Federal Remuneration and Pensions Adjustment Act) of 18 December 1995 (BGBl I p. 1942)

9. were not compatible with Article 33.5 of the Basic Law, insofar as the legislature

10. - in 1988 and 1989 with civil servants of salary scale B 2 of the Federal Remuneration Ordinance;

11. - in 1990 with civil servants and judges of salary scales A 4 to A 13 (not incl. A 5 and A 10), B 2, as well as of R 1 of the Federal Remuneration Ordinance;

12. - in 1991 with civil servants and judges of salary scales A 4 to A 13 (not incl. A 10), as well as of R 1 of the Federal Remuneration Ordinance;

13. - in 1992 with civil servants and judges of salary scales A 4 to A 14 (not incl. A 10), as well as of R 1 of the Federal Remuneration Ordinance;

14. - in 1993 with civil servants and judges of salary scales A 4 to A 14 (not incl. A 10), as well as of R 1 of the Federal Remuneration Ordinance;

15. - in 1994 with civil servants and judges of salary scales A 4 to A 15 (not incl. A 10), as well as of R 1 of the Federal Remuneration Ordinance;

16. - in 1995 with civil servants and judges of salary scales A 4 to A 15 (not incl. A 10), as well as of R 1 and R 2 of the Federal Remuneration Ordinance;

17. - in 1996 with civil servants and judges of salary scales A 4 to A 13 (not incl. A 10), as well as of R 2 of the Federal Remuneration Ordinance

18. having in each case more than two children entitled to maintenance omitted to determine child-related salary elements in an amount corresponding to the principle of the state’s obligation to take care of civil servants’ welfare in a manner that is in keeping with their office.

19. 2. The legislature must make the legal situation considered to be unconstitutional compatible with the constitution by 31 December 1999.

20. If the legislature does not comply with this, the following applies, with effect from 1 January 2000:

21. Remuneration recipients shall have a right to family-related salary elements for the third and each further child entitled to maintenance amounting to 115 per cent of the average total requirement of a child under the law on social assistance, calculated in accordance with the reasoning re C. III. 3.

R e a s o n s:

A.

The subject-matter of the submissions is the compatibility with the Basic Law of the provisions of the 1987, 1988, 1991, 1992, 1993, 1994 and 1995 Federal Remuneration and Pensions Adjustment Acts detailed in the caption, insofar as they regulate the state’s obligation to take care of the welfare of civil servants and judges with more than two children in the period from 1988 to 1996.

[…]

I.

By means of the 1987, 1988, 1991, 1992, 1993, 1994 and 1995 Federal Remuneration and Pensions Adjustment Acts, the legislature adjusted the remuneration and pensions of civil servants, judges, soldiers and pensioners to developments in the general economic and financial circumstances. In some instances, the increases entered into force with delays in comparison to the collective agreements for the employee area of the public service. This was intended to make a tangible special contribution towards compensating for the cost burdens incurred by economic reconstruction in the new federal Laender subsequent to the unification of Germany (see draft Bill of the Federal Government to the 1993 Federal Remuneration and Pensions Adjustment Act, Bundestag document, Bundestagdrucksache – 12/5472, p. 21). Additionally, the postponement of the linear increases was to make a special contribution towards reducing the burden on the budget (see draft Bill of the Federal Government to the 1994 Federal Remuneration and Pensions Adjustment Act, BTDrucks 12/7706, p. 23). The local cost-of-living allowance from the third child onwards was not increased beyond the general adjustments, although this would have been necessary in accordance with the rulings of the Federal Constitutional Court of 30 March 1977 (BVerfGE 44, 249) and of 22 March 1990 (BVerfGE 81, 363). In these decisions, the Federal Constitutional Court had found that the child-related salary elements had fallen behind the constitutional requirements from the third child onwards (see BVerfGE 44, 249 (279); 81, 363 (379)). As the reason for its decision not to implement the requirements of the Constitutional Court, the Federal Government put forward the connection between child-related remuneration elements and the reorganisation of the compensation for family burdens, the final structure of which still had to be defined (see reasoning to the draft Bill of the Federal Government to the 1995 Federal Remuneration and Pensions Adjustment Act; BTDrucks 13/2210, p. 22).

It was only with the Act Reforming Public Service Law (Reform Act) of 24 February 1997 (BGBl I p. 322) that the federal legislature drew conclusions from the order of the Federal Constitutional Court of 22 March 1990 for the period from 1 January 1977 to 31 December 1989. The plaintiffs and objecting parties who asserted their claim within the named period without this already having finally been ruled on receive a monthly increase amount of DM 50.00 for the third and each further child to be included in the local cost-of-living allowance (Article 14 § 3 of the Reform Act).

II.

1. The plaintiffs in the original proceedings are civil servants and judges receiving salaries in salary scales A 4 to A 15 (not incl. A 10), B 2, as well as R 1 and R 2 of Federal Remuneration Ordinance. They are married and have more than two children for whom they have received child benefit and child-related local cost-of-living allowances. They consider the remuneration granted to them to be unconstitutional in respect of the number of children. Accordingly, they applied to their respective employers for an increase in their salaries. After the applications had been unsuccessful in the administrative procedure, the plaintiffs in the original proceedings lodged actions with the submitting administrative courts.

The original proceedings relate to the remuneration in specified segments of the period from 1 January 1988 to 31 December 1996.

2. The submitting courts have suspended the action proceedings pending with them in accordance with Article 100.1 of the Basic Law and submitted them to the Federal Constitutional Court for an examination of the question of the compatibility of the provisions of the Federal Remuneration and Pensions Adjustment Acts detailed in the caption with the Basic Law. They take the view that the well-foundedness of the actions depends on the constitutionality of these provisions. If they turn out to be compatible with the Basic Law, the actions would have to be rejected. In the event of their unconstitutionality, the proceedings would have to be further suspended, after a ruling of the Federal Constitutional Court, awaiting a regulation by the legislature. This too was said to be a different ruling than that anticipated in the event of the validity of the legal provisions within the meaning of materiality for a ruling in accordance with Article 100.1 of the Basic Law.

[…]

3. […]

III.

The Federal Government, via the Federal Ministry of the Interior, and the Second Senate Competent for Appeal on Points of Law of the Federal Administrative Court (Bundesverwaltungsgericht ) have made statements with regard to the submission orders. Additionally, Deutsche Post AG has made a statement as the defendant in the original proceedings in the proceedings 2 BvL 10/96, as have the plaintiffs in the original proceedings in the proceedings 2 BvL 26/91 and 5/96, 7/96, 8/96 and 9/96.

[…]

B.

The submissions – combined for a joint ruling – are admissible insofar as they relate to the provisions of the Federal Remuneration and Pensions Adjustment Acts detailed in the caption. […]

[…]

1. The submission orders permit one to recognise sufficiently clearly that the submitting courts would reach a different result in the event of the validity of the provisions submitted for an examination than in the event of their invalidity. This has also been sufficiently substantiated (see BVerfGE 7, 171 (173); 37, 328 (333-334); 65, 308 (316)). The orders deal with the non-constitutional legal position in sufficient detail and explain with which constitutional standard the provisions of the Federal Remuneration and Pensions Adjustment Acts detailed in the caption are not compatible in the view of the submitting courts.

2. […]

C.

The provisions of the Federal Remuneration and Pensions Adjustment Acts detailed in the caption, in conjunction with the respective Annex 2, the 1987 and 1988 Federal Remuneration and Pensions Adjustment Acts, also in conjunction with Article 14 § 3 of the Reform Act of 24 February 1997, were not compatible with Article 33.5 of the Basic Law insofar as the legislature omitted to set the child-related salary elements for married civil servants and judges with more than two children of the individual salary scales referred to in the ruling to an amount corresponding to the principle of the state’s obligation to take care of civil servants’ welfare in a manner in keeping with their office.

I.

The Federal Constitutional Court developed the constitutional standards for the state’s obligation to take care of civil servants’ welfare in a manner in keeping with their office concerning civil servants with more than two children entitled to maintenance in its orders of 30 March 1977 (BVerfGE 44, 249) and of 22 March 1990 (BVerfGE 81, 363). These standards are upheld.

1. a) The principle of the state’s obligation to take care of civil servants’ welfares belongs to the traditional principles of the permanent civil service to be observed by the legislature within the meaning of Article 33.5 of the Basic Law (see only BVerfGE 81, 363 (375); established case-law). It provides to the individual civil servant an individual right vis-à-vis the state similar to a fundamental right (see BVerfGE 8, 1 (17)). The employer is accordingly obliged to provide the civil servant with maintenance in keeping with his or her office. This also includes the duty to realistically allow for the maintenance obligations incumbent on the civil servant by virtue of his or her family. Hence, the employer not lastly allows for the task of the permanent civil service to guarantee a stable, law-abiding administration in the interplay of political forces (see BVerfGE 11, 203 (216-217); 39, 196 (201); 44, 249 (265)).

b) In the context of its obligation to take care of civil servants’ welfare in a manner in keeping with their office, the legislature must establish the attractiveness of employment as a civil servant for qualified staff and the reputation of the office in society, it must allow for the educational level, challenges faced and responsibility undertaken by the office-holder, and ensure that each civil servant can satisfy a “minimum of comfort” over and above basic needs (see BVerfGE 44, 249 (265-266); 76, 256 (324); 81, 363 (376)) and meet his or her maintenance obligations towards his or her family. It hence follows from the safeguarding function which the state’s obligation to take care of civil servants’ welfare has for the permanent civil service that civil servants may not be confronted with the choice to either satisfy a “minimum of comfort” or forgo having a family and maintaining it in accordance with the accepted obligations. The number of children a civil servant has may hence not be insignificant to an assessment and regulation of what constitutes remuneration in keeping with his or her office. Article 33.5 of the Basic Law however leaves the legislature latitude in this respect (see BVerfGE 44, 249 (267); 81, 363 (376-377)).

c) Whether civil servants’ salaries are in keeping with their office is judged in accordance with net income. The legislature is hence free to reach the goal pre-defined by the constitution through a corresponding amount of gross salary, to have civil servants participate in generally granted child benefit, to compensate in terms of fiscal law for the ability to pay reduced by child maintenance, or to bring about a combination of these possibilities (see BVerfGE 81, 363 (375-376)).

2. The Federal Constitutional Court assumed in its rulings of 30 March 1977 and of 22 March 1990 that the income of civil servants’ families with one or two children at all stages of the remuneration system were at that time largely in keeping with their office, but that the additional requirement incurred by virtue of a larger number of children must be met by means of additional benefits (see BVerfGE 81, 363 (377-378)).

The legislature goes beyond its latitude if it presumes that a civil servant must fall back for the maintenance of a third and further children on the family-neutral elements of his or her salary in order to cover the needs of his or her children. The concomitant advancing erosion of the family-neutral salary elements with a growing number of children is not acceptable because by these means a civil servant with several children cannot achieve the position in life to which he or she is entitled, or can do so only at the expense of his or her family (see BVerfGE 81, 363 (378)).

3. With the measurement of the additional need incurred for the civil servant’s third and further children which is to be met by the employer beyond the state’s obligation to take care of civil servants’ welfare in the case of a two-child-family, the legislature may take as a basis those standard rates for the child’s maintenance which are provided by the legal order. These rates are, however, orientated towards the satisfaction of differing needs. The legislature must take account of their unequal authoritativeness for the amount of maintenance owed to the civil servant by his or her employer in keeping with his or her office. For instance, requirement rates orientated to a child’s utmost minimum requirement, in other words in particular the social assistance rates, constitute state aid to maintain a minimum degree of social security. In contrast to this, the state’s obligation to take care of the welfare of the civil servant and his or her family is a different matter in qualitative terms. This difference must be made clear in the measurement of the child-related elements of the civil servant’s salary (BVerfGE 81, 363 (378)).

II.

The objections lodged against this do not hold. The granting of child-related salary elements is neither a “civil servants’ privilege”, nor is it a “double child benefit” (1). The economic circumstances from 1988 to 1996 do not permit one to conclude that there was a worsening of the general standard of living affecting the “minimum of comfort” to be guaranteed to the civil servant (2). The married civil servant with two children used as a comparison standard was also not overpaid in the period under examination here (3). No consequences emerge for the proceedings at hand from the reduction of the starting salary by the 1984 Budget Support Act (Haushaltsbegleitgesetz ), to which the Federal Constitutional Court did not object (4). Ultimately, the changed framework resulting from German unification and European Monetary Union did not justify imposing a “special burden” on civil servants with more than two children (5).

1. It does not comply with the special circumstances of employment as a civil servant guaranteed by Article 33.5 of the Basic Law to consider the benefit of child-related salary elements to constitute a “civil servants’ privilege” or a “double child benefit”. Employment as a civil servant is not an employment contract in the traditional sense; in particular it is not employment for money on the basis of which work is to be performed within limits of content, time and scope, thus giving rise to a right to remuneration. Employment as a civil servant, rather, gives rise to independent duties for the civil servant and the employer respectively. These follow directly from the law; they are not contractually agreed. The civil servant has the duty to provide his or her labour to the employer. The employer is obliged to grant to the civil servant maintenance for himself or herself and for his or her family in keeping with his or her office (see BVerfGE 11, 203 (216-216); 39, 196 (201); 44, 249 (265)). Allowance for the number of children in terms of remuneration is hence not a “civil servants’ privilege”, but is inherent to the obligation incumbent on the state to take care of civil servants’ welfare.

2. A new determination of the “minimum of comfort” is not required.

a) Incomes in the Federal Republic of Germany as a rule increased faster than prices in 1978 to 1996. […]

b) […]

As a consequence, the legislature did not react to an alleged worsening of the overall economic situation. Rather, in accordance with the reasoning of the Federal Remuneration and Pensions Adjustment Acts, the remunerations and pensions were also increased in 1993 and 1994 in order to adjust them in line with developments in the general economic and financial situation (see the respective reasoning to the draft Bill of the Federal Government to the 1993 Federal Remuneration and Pensions Adjustment Act (BTDrucks 12/5472, p. 21) and to the 1994 Federal Remuneration and Pensions Adjustment Act (BTDrucks 12/7706, p. 23)). It is therefore not possible to attribute the statistically calculated increase in income to the increase in civil servants’ salaries.

c) […]

d) […]

3. If in accordance with the above, the “minimum of comfort” is not to be re-defined because of a worsening in the general circumstances, it is also not possible in the period under assessment to assume “overpayment” of a four-person civil servants’ family, which still serves as a standard. The remuneration of this group of civil servants was also only increased in line with the general financial and economic situation (see respective reasoning to the draft Bill of the Federal Government to the 1993 Federal Remuneration and Pensions Adjustment Act (BTDrucks 12/5472, p. 21) and to the 1994 Federal Remuneration and Pensions Adjustment Act (BTDrucks 12/7706, p. 23)).

4. No other conclusion is drawn from the reduction of the starting salary by the 1984 Budget Support Act of 22 December 1983 (BGBl I p. 1532), which was not objected to by the Federal Constitutional Court (preliminary examination committee (Vorprüfungsausschuß )) in the order of 15 January 1985 – 2 BvR 1148/84 – (Neue Zeitschrift für Verwaltungsrecht – NVwZ 1985, p. 333). The Federal Constitutional Court has merely repeated its established case-law there, in accordance with which the legislature receives broad latitude (see only BVerfGE 13, 356 (362); 56, 87 (95); 64, 367 (378-379)). The Federal Constitutional Court did not have to address in the referenced order the question of the state’s obligation to take care of civil servants’ welfare in a manner in keeping with their office, which is under consideration in the instant case in relation to civil servants with many children.

5. The state’s obligation to take care of civil servants’ welfare in a manner in keeping with their office is, finally, also not to be re-defined because of the impact on public budgets by German unity, as well as by the Treaty of Maastricht. It is not denied here that the state had to deal with an exceptional historical situation. The legislature may accommodate concerns of public interest of this nature by regulating remuneration in the framework of broad latitude to which it is in principle entitled in this area. Having said that, it must take into account that the state’s obligation to take care of civil servants’ welfare owed by the employer according to the constitution is not a variable of arbitrary scope (see BVerfGE 44, 249 (264)).

Demanding a “special contribution” only from civil servants with many children is constitutionally impermissible. The state’s obligation to take care of civil servants’ welfare in a manner in keeping with their office can also be achieved without increasing overall expenditure on the remuneration of civil servants.

III.

1. The legislature went beyond the broad latitude to which it is entitled in principle in the law on remuneration and pensions insofar as it demands that a civil servant must fall back on the family-neutral salary elements for the maintenance of his or her third and each further child insofar as related to meeting the need which is considered to be suitable in the standard rates for child maintenance provided by the legal order. The concomitant advancing erosion of the family-neutral salary elements with a growing number of children is not acceptable because by these means a civil servant with several children cannot achieve the position in life to which he or she is entitled, or can do so only at the expense of his or her family (see BVerfGE 81, 363 (378)).

2. The calculations that are necessary for this are based on the respective net income calculated by the Federal Ministry of the Interior (see BVerfGE 81, 363 (376)). The annual remuneration was taken as a basis here. This includes the basic salary (in the final step), the local cost-of-living allowance, the allowance for special purposes in accordance with no. 27 of the Preliminary Remarks (Vorbemerkungen ) to Federal Remuneration Ordinances A and B, the annual special payment and the holiday bonus, as well as any one-off payments. The net earnings emerge after deduction of wage tax (in accordance with the special wage tax tables), church tax (church tax rate: 8 per cent) and the solidarity levy (insofar as this was levied in the year in question), and after addition of child benefit.

3. Whether the legislature has sufficiently complied with the state’s obligation to take care of the welfare of civil servants with more than two children in the remuneration provisions submitted for examination, is judged on the basis of the overall requirement under the law on social assistance. On this, the Federal Constitutional Court has already stated that the state’s obligation to take care of civil servants’ welfare is something different in qualitative terms (see BVerfGE 44, 249 (264-265)). This difference must be visible with the assessment of the child-related elements of a civil servant’s salary. An amount which is 15 per cent higher than the overall requirement under the law on social assistance (“15 per cent amount”) makes sufficiently clear the constitutionally required difference between the satisfaction of an utmost minimum requirement incumbent on social assistance and the maintenance currently owed to the civil servant (and his or her family) (see BVerfGE 81, 363 (382-383)). This calculation method does not lead to an absolute provision of what makes up the remuneration to be granted to the civil servant. If the bonuses granted to the civil servant for his or her third and each further child are not even 15 per cent above the overall requirement under the law on social assistance, the legislature has exceeded the latitude to which it is entitled.

In the case at hand, the overall requirement under the law on social assistance is calculated, initially, by forming an average standard rate in accordance with § 22 of the Federal Social Assistance Act (Bundessozialhilfegesetz ) for the former federal territory (see the report on this by the Federation/Laender remuneration commission on the remuneration law consequences of the income-dependent reduction of child benefit of 30 January 1984, which entered into force on 1 January 1983, (BLK-Bericht 1984) p. 9, as well as BVerfGE 82, 60 (94); 91, 93 (112)). To be added to this is an average allowance of 20 per cent to pay for one-off benefits for maintenance (see Nachrichtendienst des Deutschen Vereins für öffentliche und private Fürsorge – NDV 1995, p. 1 (p. 10, C. IV. b); BVerwG, Judgment of 20 June 1996 – BVerwG 2 C 7.95 –; BLK-Bericht 1984, p. 9), plus the cost of housing on the basis of a residential requirement of 11 m² per child (see BVerfG, Order of 10 November 1998 – 2 BvL 42/93 –, preliminary print pp. 26-27, 31; notification by the Federal Government, report on the amount of the minimum income of children and families in 1996, BTDrucks 13/381, p. 4). This is based on the average rent in the old Federal Laender of DM 9.53 per m² calculated by the Federal Statistical Office in the so-called 1993 1 per cent building and apartment survey (1 %-Gebäude- und Wohnungsstichprobe ) (see Federal Statistical Office, Bautätigkeit und Wohnungen , 1 %-Gebäude- und Wohnungsstichprobe 1993, series 5, vol. 3, p. 35). This average rent was reverse projected and updated using the rent index of the Federal Statistical Office (printed in the Wohngeld- und Mietenbericht 1997; BTDrucks 13/10384, p. 21). Finally, the energy costs for a child are allowed for at 20 per cent of the net rent (see on this BTDrucks 13/381, p. 4).

4. The “15 per cent amount”, which currently makes clear the constitutionally required difference between the state’s obligation to take care of civil servants’ welfare and the coverage of an utmost minimum requirement, is compared to the average net additional amount which the civil servant receives for his or her third and each further child. This corresponds to the requirement of the legislature according to which the net income must be sufficient in order to provide for a civil servant, including his or her family, in a manner in keeping with his or her office. The fact of taking the average net additional amount as a basis further accommodates the circumstance that partly because of the income-dependent child benefit reduction from the second child onwards which was applicable until 1995 led – despite the anticipated smooth course – to fluctuations in the calculation of the net additional amount from child to child. This higher additional amount incurred by the abolition of the income-dependent child benefit reduction cannot however be regarded as a net additional amount for the child due to whom the reduction in child benefit was discontinued. In this respect, it is to be spread over the third, fourth, fifth (etc.) child.

IV.

These standards were not met by the provisions detailed in the caption. This is shown by the following comparative calculations per month.

[…]

These comparative calculations show that the remuneration of married civil servants with more than two children who are entitled to maintenance has not been at least 15 per cent above social assistance as required by the constitution in the salary scales relating to the submission proceedings with regard to the third and each further child. Not even the overall requirement under the law on social assistance was compensated for by the net additional amount granted for a child with an increasing number of children. This applies in 1988 and 1989 to salary scale B 2 to be examined separately here, even if one adds DM 50.00 per child per month (Article 14 § 3 of the Reform Act).

In accordance with the above, the legislature has exceeded the latitude to which it is entitled in principle. With the provisions submitted for examination, it has remained clearly below the limit imposed by the state’s obligation to take care of civil servants’ welfare for civil servants in the respective salary scales with more than two children.

This result is confirmed by the “Report of the Federation/Laender Remuneration Commission on Remuneration Law Consequences for Constitutional Child-related Remuneration from the Order of the Federal Constitutional Court of 22 March 1990 (2 BvL 1/86) (Bericht der Besoldungskommission Bund/Laender über besoldungsrechtliche Folgerungen für eine verfassungskonforme kinderbezogene Besoldung aus dem Beschluß des BVerfG vom 22. März 1990 )” from 1992 (BLK-Bericht 1992)). This report finds considerable underpayment over the entire period from 1 February 1981 to 31 December 1989, and from 1 January 1990 onwards (see p. 24 of the report). Also in the reasoning of the draft Bill of the Federal Government on the 1995 Federal Remuneration and Pensions Adjustment Act (BTDrucks 13/2210, p. 22) it is stated that “it has not yet been possible to implement the increase in the local cost-of-living allowance from the third child onwards required with regard to the order of the Federal Constitutional Court of 22 March 1990 – 2 BvL 1/86 – for the state’s obligation to take care of civil servants’ welfare in a manner in keeping with their office as it affects civil servants with three and more children (...)”.

V.

In view of the established violation of Article 33.5 of the Basic Law, it is no longer a matter of whether the legislature has also violated Article 3.1 of the Basic Law. This question may remain open, as in the rulings of 30 March 1977 and of 22 March 1990.

D.

The provisions regarding the time of entry into force of the respective Article I § 1 and Article I of the Federal Remuneration and Pensions Adjustment Act detailed in the caption also do not stand up to a constitutional examination. They too are in breach of Article 33.5 of the Basic Law.

I.

The Federal Constitutional Court found in its order of 22 March 1990 (see BVerfGE 81, 363 (383 et seq.)) that the legislature had been obliged – after the ruling of 30 March 1977 (BVerfGE 44, 249) had become known in July of the same year – to bring the legal situation objected to in that ruling as having been unconstitutional since 1 January 1975 into compatibility with the constitution with effect from 1 January 1977. It was said, however, that a general retroactive elimination of this violation of the constitution had not/no longer been required. Retroactive correction was alleged to have been able to be restricted to civil servants who had soon asserted their claim on the state’s obligation to take care of civil servants’ welfare in a manner in keeping with their office, in other words during the pending budget year, in court or by means of an objection (see BVerfGE 81, 363 (385)). The Federal Constitutional Court has reached this conclusion on the basis of the special circumstances of employment as a civil servant (see BVerfGE 81, 363 (384 et seq.)). This is upheld.

II.

The following conclusions are drawn from this for the proceedings to be ruled on in the instant case:

1. Insofar as remuneration claims from 1988 and 1989 are considered (proceedings 2 BvL 26/91), the legislature was obliged on the basis of the order of the Federal Constitutional Court of 22 March 1990 (BVerfGE 81, 363) towards those civil servants who had soon asserted their claims to create a constitutional legal basis for remuneration. It did not meet this obligation. The increase amount of DM 50.00 per child per month now envisioned in Article 14 § 3.1 of the Reform Act, which entered in force on 1 July 1997, is not suited to do so.

2. The following applies to remuneration claims from 1990 onwards: The legislature was obliged – after the ruling of the Federal Constitutional Court of 22 March 1990 had become known in July 1990 – to bring the legal situation objected to in this ruling as unconstitutional into compliance with the constitution with effect as on 1 January 1990. This did not take place.

3. The legislature is obliged to bring the legal situation objected to in this ruling as unconstitutional into compliance with the constitution. A general retroactive remedy of the violation of the constitution is not required with a view to the special circumstances of employment as a civil servant already detailed in the order of 22 March 1990. A retroactive remedy is however necessary – at least insofar as the claim on the state’s obligation to take care of civil servants’ welfare in a manner in keeping with their office has been claimed soon in court – both as to the plaintiff in the original proceedings and also to those plaintiffs on whose claims no conclusive ruling has yet been handed down. No detrimental effect will be had by claims having become legally pending later if the action could not be lodged in time because of the time required for necessary preliminary proceedings.

E.

The ruling re 2. is based on § 35 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG). The measure is necessary because, despite the mandates for action afforded to it in the rulings of the Federal Constitutional Court of 30 March 1977 and of 22 March 1990, the legislature did not define the amounts of the child-related salary elements of civil servants with more than two children entitled to maintenance in the period up to 1996 (and possibly thereafter) in a manner compatible with the principle of the state’s obligation to take care of civil servants’ welfare. If the legislature does not meet its obligation as handed down once more by this ruling by 31 December 1999, the employers are obliged to grant family-related salary elements amounting to 115 per cent of the average overall requirement of a child under the law on social assistance for the third and each further child entitled to maintenance (see C. III. 3. above). The non-constitutional courts are entitled to grant family-related salary elements in accordance with this standard.