Headnotes (non-official):

It is compatible with the Basic Law that § 32 of the Pension Rights Division Act excludes the applicability of the adjustment provisions pursuant to §§ 33 and 37 of the Pension Rights Division Act to supplementary pension rights for the public sector.

Summary:

Under German law, there is a division of pension rights in case of divorce. § 32 of the law that governs this division (Pension Rights Division Act, hereinafter: “the Act”) stipulates that certain pensions – the ones that traditionally were the main or primary pensions – are subject to certain exceptions from the division of pension rights. In contrast, what are considered “supplementary pensions” do not fall under these exceptions. The decision at issue concerns the question of whether it is constitutional that supplementary pensions for the public sector are not covered by certain exceptions. The Federal Constitutional Court was tasked with deciding two cases: An application for judicial review (konkrete Normenkontrolle), and a constitutional complaint.

The first case concerned a husband who had gotten divorced from his wife. In the divorce proceedings, his (supplementary) pension rights were divided between him and his former wife. He also had to pay her alimony. If the above-mentioned exception pursuant to § 32 of the Act covered the husband’s (supplementary) pension, § 33 of the Act would apply and his pension rights would not have to be shared with his wife. The Higher Regional Court found that the limited scope of § 32 of the Act was incompatible with the protection of property pursuant to Article 14.1 of the Basic Law and brought the question before the Federal Constitutional Court.

In the second case, the applicant had gotten divorced from his wife, and half of his (supplementary) pension rights were allocated to her. She subsequently died, having received these benefits for less than 36 months. If the pension rights were covered by above-mentioned § 32 of the Act, § 37 of the Act would apply, and the husband could ask that after his ex-wife’s death, his whole pension be reinstated to him. His legal actions against the pension funds, in which he demanded his full pension, were, however, unsuccessful. He thus filed a constitutional complaint.

II.
The Federal Constitutional Court found that the fact, that § 32 of the Act excludes supplementary pensions for the public sector from certain exceptions, does not violate the fundamental right to property (Article 14.1 of the Basic Law) or the equal protection clause (Article 3.1 of the Basic Law). While it would be permissible under the Constitution to include supplementary benefits for the public sector in § 32 of the Act, there was no such constitutional mandate. Justice Gaier, however, dissented, arguing that Article 14.1 of the Basic Law had indeed been violated.

This decision of the Court’s majority was based on the following considerations: First, the Court found that pension rights are subject to the typical risk of insurance. The insurance holders might thus get more or less than what they contributed, and this risk does not have to be mitigated by exception clauses for certain types of hardships. This risk continues after pension rights have been split between two former spouses. Thus, the partner whose rights have been reallocated does not have to bring a “needless sacrifice”, there is no enrichment of the community of insured citizens, and thus no violation of Article 14.1 of the Basic Law. The Court also found that the legislator has a wide margin of appreciation with regard to the question of which kinds of pension rights should be subject to exceptions. Since there was no violation of Article 14.1 of the Basic Law, and the distinctions were made pursuant to the kind of insurance (and not, e.g., individual traits of the persons concerned), the legislator’s reasons for its decision were sufficient.