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Constitutional complaints against the calculation of VBL supplementary pensions under § 18 BetrAVG unsuccessful
Press Release No. 38/2012 of 12 June 2012
Order of 8 May 2012
1 BvR 1065/03
The constitutional complaints relate to the calculation of supplementary pensions of the Supplementary Pensions Agency for Federal and Länder Employees (Versorgungsanstalt des Bundes und der Länder (hereinafter: the Agency) under § 18 of the Act to Improve Company Pension Schemes (Gesetz zur Verbesserung der betrieblichen Altersversorgung - BetrAVG). This provision governs the vested expectancy of an occupational pension on early retirement from civil service.
Both complainants were employed in the civil service and compulsorily insured by the Agency. They ended their employment relationships before reaching the standard retirement age and thus left the Agency's compulsory insurance. From the date of retirement, they received a supplementary pension from the Agency; this was calculated on the basis of the relevant provisions of the Agency's Rules in conjunction with § 18 BetrAVG. In the original proceedings, the complainants sought the payment of higher supplementary pensions. They submitted that the applicable provisions of the Rules were unconstitutional; consequently, the applicable computation provisions were those applying where there was no early retirement. In the alternative, they sought a calculation of their supplementary pensions under the arrangements for the private sector in § 2 BetrAVG. Their actions before the civil courts were unsuccessful. In their constitutional complaints directed against this and against the provisions for the calculation of the supplementary pensions, the complainants essentially challenge a violation of the general principle of equality before the law, because the employees of the civil service are treated differently depending on the time when they retire and in addition they are also treated differently on early retirement from employees in the private sector. In addition, they submit, their fundamental right of property is violated, for they have in part been deprived of the pensions which they have earned.
The First Senate of the Federal Constitutional Court dismissed the constitutional complaints as unfounded.
In essence, the decision is based on the following considerations:
Insofar as the constitutional complaints directly challenge § 18 BetrAVG, they are inadmissible for the mere reason that they were not filed within one year after the Act entered into force. Apart from this, the constitutional complaints do not satisfy the requirements for their substantiation.
Admittedly, the Rules of the Agency are a qualified object of a constitutional complaint. This applies notwithstanding their classification by the Federal Court of Justice (Bundesgerichtshof) as standard business terms under private law in the form of general insurance conditions.
However, the constitutional complaints are not sufficiently substantiated. In particular, they do not adequately set out how far the fundamental right to equal treatment of Article 3.1 of the Basic Law (Grundgesetz - GG) is specifically violated to the detriment of the complainants.
The procedural requirement that the violation of a fundamental right must be plausibly set out may also apply to information which was originally not within the complainants' knowledge, if they are capable of setting this out and can reasonably be expected to do so. In the individual case a complainant may reasonably be expected to make use of supportive advice in order to be able to challenge a constitutional violation in a substantiated manner. If a constitutional complaint challenges complex provisions, it is insufficient to challenge detrimental unequal treatment on the basis of individual factors of the calculation of a benefit. Instead, the complainants must also consider their interaction and the overall result. For this purpose, where necessary, alternative calculations must be submitted which, if required, must also be prepared with the help of expert third parties. The complainants may reasonably be expected to incur expenses for alternative calculations if this does not make it disproportionately more difficult for them to make a constitutional complaint. This is not apparent in the present case. However, if, exceptionally, an alternative calculation cannot reasonably be required, at all events the specific factual bases for an alternative calculation must be submitted. In addition, unequal treatment relevant to the issue resulting from individual provisions in complex calculation systems is only adequately presented if the constitutional complaint shows the specifically detrimental effects of the respective provision on the amount of the benefit.
The submissions of the complainants in particular do not show clearly how large a claim under § 2 BetrAVG would be and how it would need to be calculated for them. Admittedly, the body of rules which applies in this case was of a complexity which made it scarcely possible for the insured to understand what benefits they could expect. But they neither submitted alternative calculations nor prepared these with the help of third parties nor submitted the bases for such a calculation. Apart from this, the complainants did not challenge the alternative calculations of the Agency, which showed that there were no higher claims.
Insofar as the complainants assert that they were disadvantaged in contrast to those who do not retire early, they did indeed show disadvantages. But there is a lack of substantiated submissions as to how far these may constitute violations of fundamental rights. In particular, they do not deal with the question as to whether company loyalty until retirement is capable of justifying higher pensions.
Nor do the constitutional complaints show the possibility of a violation of the fundamental right to property under Article 14.1 GG. It is true that vested expectancies of occupational pensions are also protected under property law. However, the complainants do not name any legal status which the legal system has already awarded them in such a way that their rights are also protected in a particular amount by Article 14.1 GG.