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Application for a review of the provision on pensions paid for the upbringing of children held inadmissible
Press Release No. 36/2012 of 06 June 2012
Order of 2 May 2012
1 BvL 20/09
Pension law contains several provisions that grant a surviving spouse a pension. § 46 of the Sixth Book of the Code of Social Law (Sozialgesetzbuch VI - SGB VI) regulates the right to a widow's or widower's pension. Widows and widowers are entitled to the "large" widow's or widower's pension if they are bringing up a child of their own who is a minor or a minor child of their deceased spouse. Surviving spouses who were divorced after 30 June 1977 are entitled pursuant to § 47.1 SGB VI to a pension for the upbringing of children if they are bringing up a child of their own who is a minor or a minor child of their deceased spouse. There is a uniform regulation of the group of children whose upbringing triggers a widow's or widower's pension entitlement and a pension for the upbringing of children. It is not necessary for the children to be joint children; illegitimate children and children from a prior marriage of either the deceased or the spouse bringing up the child as well as their stepchildren, grandchildren or siblings also trigger such entitlement. The pension for the upbringing of children is like the widow's or widower's pension a death-related pension; however, unlike the latter it is a pension based on the surviving divorced spouse's own insurance.
The plaintiff in the original proceedings was never married and had a minor child whose father died in 2008. According to the information supplied by the plaintiff, he lived with her and the child until his death like a "real family" albeit in a separate flat in the same block of rented flats. He received a pension under the statutory pension scheme, but did not, however, pay any child support for his son. The statutory pension authority refused the plaintiff's application for a pension for the upbringing of children because the plaintiff had never been married to the deceased. The action brought by the plaintiff against the refusal resulted in the submission made to the Federal Constitutional Court by the Bavarian Higher Social Court (Landessozialgericht), which regarded the pension for the upbringing of children as unconstitutional in many regards. According to the Bavarian Higher Social Court, § 47.1 SGB VI is not compatible with the equal treatment of illegitimate children guaranteed by Article 6.5 of the Basic Law (Grundgesetz - GG) because it excludes the parents of joint illegitimate children from a pension for the upbringing of children and thus discriminates against them at least indirectly. In its view the provision was also incompatible with the general principle of equality (Article 3.1 GG) because it treated the bringing up of joint legitimate children as well as the bringing up of children who were not joint children as a sufficient basis for a pension entitlement on the part of the divorced person but did not recognise joint illegitimate children as a basis for such an entitlement.
The First Senate of the Federal Constitutional Court held that the submission was inadmissible because the submitting court did not fulfil its evidentiary burden since it failed to take into consideration all of the pertinent regulations on pension benefits during its equality review.
In essence, the decision is based on the following considerations:
The admissibility of a submission pursuant to Article 100.1 GG presupposes that the constitutionality of the provision submitted for review is significant for the outcome of the original proceedings. Where the decision of the submitting court is not solely dependent on the provision in respect of which it has reservations, it must take into its legal consideration other provisions related to the provision during its equality review.
1. The submission by the Higher Social Court does not meet these requirements because it only considers the provision dealing with the pension for the upbringing of children pursuant to § 47 SGB VI during its equality review and does not consider the provision on the "large" widow's or widower's pension pursuant to § 46.2 No. 1 SGB VI as a basis for a possible pension claim by the plaintiff.
The widow's or widower's pension provision in § 46 SGB VI is only contingent on the existence of a marriage, while the provision on the pension for the upbringing of children in § 47 SGB VI requires a divorce in addition to a marriage. Since however the complainant and her deceased partner lived according to her submissions in an intact family until his death, it is imperative that the court draw parallels also with marriage and take into account the provision in § 46 SGB VI when deciding the equality claims asserted by her. The Higher Social Court should therefore have categorised the provision on the pension for the upbringing of children as part of the overall pension benefits system applicable in the case of the death of a spouse and incorporated the related survivor's pension in its equality review.
2. To the extent that the Higher Social Court regarded the fact that not even the death of the biological father would trigger an entitlement to a pension for the upbringing of children on the part of the mother of the child who was not married to him, while children in a patchwork family, i.e. the children of a divorced childrearer who were not related to the deceased would trigger such an entitlement as a violation of the general principle of equality before the law, it failed to address the case law of the Federal Constitutional Court on Article 3.1 GG in respect of welfare law. According to such case law, it can be expedient on the basis of Article 3.1 in conjunction with Article 6. 1 GG to allow a survivor's pension as is available for widows and widowers where the surviving partner of a de facto couple brings up joint illegitimate children.
3. Furthermore, the Higher Social Court assumes that marriages and de facto relationships may not be treated differently under the statutory pension scheme if the pension entitlement is based on the bringing up of a child because Article 6.5 GG stipulates that legitimate and illegitimate children should be treated equally. In this respect the Higher Social Court fails to consider the case law of the Federal Constitutional Court on the protection of marriage pursuant to Article 6.1 GG and in particular fails to consider its comments on when a legally nebulous, de facto relationship can be equated with a marriage or a registered civil partnership in which the parties legally commit themselves to be responsible for one another. In addition, the Higher Social Court does not take into account in its considerations that the issue is not a claim for child support by the parent bringing up the child against the other parent but rather a claim against the statutory pension authority, which is in no way dependent on whether any claims for child support have been lost due to the death.