German registered partners entitled to same pension rights as spouses

by on October 26, 2009  •  In Employment law

Germany's constitutional court (the equivalent to the U.S. Supreme Court) ruled late last week that surviving partners in a registered civil partnership have a right to collect under the occupational pension scheme for civil service employees. The court found that affording such payments to surviving spouses in a marriage but excluding civil partners violated the equal treatment provision in Article 3.1 of Germany's Basic Law (the rough equivalent of the Constitution), and was not  justified by the rationale underlying the pension system. The complaint was brought by a civil servant in a registered partnership after being denied the same premium rates as married persons – a classification that also would deny his partner the right to collect on the pension in the event of his death. 

Coincidentally, the Williams Institute has just published an analysis of the discrepancies between same-sex partners and married couples in their access to employer-sponsored retirement benefits in the U.S.

An English language version of the German court's summary of the new decision is after the jump –>

The constitutional complaint relates to the unequal treatment of 
marriages and registered civil partnerships concerning survivor’s
pensions under an occupational pension scheme for employees in the civil
service according to the rules of the Supplementary Pensions Agency for
Federal and Länder Employees (Versorgungsanstalt des Bundes und der
– VBL). Unlike the statutory pension scheme, the VBL’s
supplementary pension scheme does not pay a survivor’s pension for
registered civil partners. The complainant, who lives in a registered
civil partnership, unsuccessfully challenged this before the civil

The First Senate of the Federal Constitutional Court decided that the
challenged court rulings violate the complainant’s fundamental right to
equal treatment under Article 3.1 of the Basic Law (Grundgesetz – GG).
The last-instance ruling of the Federal Court of Justice
(Bundesgerichtshof) was overturned in this respect, and the matter was
referred back to the Federal Court of Justice.

In essence, the decision is based on the following considerations:

1. The general principle of equality (Article 3.1 GG) demands that all
people be treated equally before the law. It also prohibits the
exclusion of a favourable treatment that is contrary to equality in
which a favourable treatment is granted to a group of persons while it
is denied to another group of persons. Irrespective of its private-law
nature, the VBL’s rules are to be measured directly against the precept
of equality of Article 3.1 GG because as a corporate body under public
law, the VBL performs a public function.

2. The provisions on survivor’s pensions in the VBL’s rules (§ 38 VBLS)
result in an unequal treatment between insured persons who are married
and those who live in a registered civil partnership. A married insured
has, as part of his or her own position under supplementary pensions
law, a claim on his or her spouse receiving a survivor’s pension in the
case of the insured person’s death. An insured person who has
established a registered civil partnership does not acquire such a claim
for his or her civil partner.

3. This unequal treatment of marriages and registered civil partnerships
is not constitutionally justified.

a) The unequal treatment of married persons and registered civil
partners under § 38 VBLS requires a strict standard for reviewing
whether a sufficiently weighty reason of differentiation exists. A
special need for justification follows from the facts that the unequal
treatment of spouses and registered civil partners concerns the personal
characteristic of sexual orientation and that the provision concerning
survivor’s pensions in the VBL’s rules largely follows the provision of
the Sixth Book of the Code of Social Law (Sozialgesetzbuch VI –SGB VI)
concerning widow’s and widower’s pensions but abandons this link to the
detriment of the registered civil partnership.

b) Making reference to marriage and its protection under the
constitution (Art. 6.1 GG) is not sufficient here for justifying the
unequal treatment. Viable factual reasons for an unequal treatment in
the area of survivor’s pensions in company pension schemes do not exist
and in particular do not result from an inequality of the life situation
of married couples and civil partners.

According to Article 6.1 GG, marriage and the family enjoy the special
protection of the state. It is in particular the duty of the state to
refrain from everything that damages or otherwise adversely affects
marriage, and to promote marriage by suitable measures. In principle,
the legislature is not barred from treating marriage more favourably
than other ways of life. The provisions that treat marriage more
favourably with regard to maintenance and pensions as well as under tax
law can find their justification in the spouses’ jointly shaping their
path through life and in the responsibility for the partner which they
have assumed in a permanent and legally binding manner.

Where giving marriage favourable treatment goes along with
disadvantaging other ways of life even though they are comparable to
marriage as regards the life situation that is regulated and the
objectives pursued by the regulation, the mere reference to the
requirement of protecting marriage does not justify such a
differentiation. For the authority of giving favourable treatment to
marriage does not give rise to a requirement contained in Article 6.1 GG
to disadvantage other ways of life in comparison to marriage. It cannot
be justified constitutionally to derive from the special protection of
marriage a rule that such partnerships are to be structured in a way
distant from marriage and to be given lesser rights. Beyond the mere
reference to Article 6.1 GG, a sufficiently weighty factual reason is
required here which, measured against the respective object and
objective of regulation, justifies the unfavourable treatment of other
ways of life.

c) No differences can be identified under non-constitutional law or
factually which justify treating registered civil partners less
favourably than spouses with regard to the VBL’s survivor’s pension.

The VBL’s survivor’s pension is a benefit from an occupational pension
scheme and as such forms part of the remuneration. As regards the
objective of granting remuneration, no differences can be identified
between married employees and employees who live in a civil partnership.
The same applies with regard to the pension character of the benefits
from occupational pension schemes. The legislation concerning the
obligations to provide maintenance within marriages and registered civil
partnerships is almost identical, so that the same standards apply for
measuring the maintenance requirement of a person entitled to
maintenance and the maintenance gap arising upon the death of a person
liable for maintenance.

A reason for differentiating between marriage and registered civil
partnership can also not be found in the fact that married couples
typically have a different pension requirement than civil partners
because of gaps in their employment biography due to their bringing up
of children. Not every marriage has children. Not every marriage is
oriented towards having children. It cannot be assumed either that the
role allocation in marriages is such that one of the spouses is
considerably less occupation-oriented. Consequently, the image of the
“breadwinner marriage”, in which one of the spouses maintains the other,
which no longer determines typical reality in society, cannot be
regarded any longer as the yardstick for assigning survivor’s benefits.

On the other hand, it also cannot be excluded that in registered civil
partnerships the roles are allocated in such a way that one partner is
more strongly oriented towards his or her occupation and the other
partner more strongly towards the domestic sphere, including childcare.
Children live in a large number of registered civil partnerships,
especially in those of women. It is true that the proportion of
registered civil partnerships with children is far lower than that of
married couples; it is, however, by no means negligible.

In addition, possible child-raising periods or another individual
pension requirement can be taken into account in a more specific manner
irrespective of marital status, as is done in the law of the statutory
pension system as well as in the VBL’s rules.

4. Where general conditions of insurance, as in this case the VBL’s
rules, infringe Article 3.1 GG, this results, according to the civil
courts’ case-law, which is constitutionally unobjectionable, in the
ineffectiveness of the terms concerned. Gaps in the regulation which
arise thereby can be filled by way of a supplementary interpretation.
The infringement of the principle of equality cannot be eliminated by
the merely not applying § 38 VBLS because this would exclude survivor’s
pensions also for spouses. The regulation plan pursued with the
survivor’s pension scheme pursuant to § 38 VBLS can only be completed in
such a way that the provision for spouses will, with effect from 1
January 2005, also be applied to registered civil partners.

While Germany does not allow same-sex marriage [JURIST news archive], German law affords several rights [ILGA backgrounder] to registered same-sex partnerships including alimony and divorce, limited adoption provisions and pension rights that exclude federal civil servants.


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