74 BVerf GE 163 (1987)

The 1957 reform of the German Retirement Law defined a new exception to the general retirement age of 65 years. In the current version it holds that women may apply to receive a pension after having turned 60 year-old, provided that they paid retirement premiums for at least 180 months and for more than ten years during the last twenty years occupied positions in which they had to pay retirement premiums (Section 25.3. of the Employee Insurance Law (EIL)). The 1957 reform had the stated purpose to address the fact that the women covered by the reform often held two occupations--one as a regular employee and the other one as a housewife--which caused a premature depletion of strength and thereby an earlier disability to be part of the workforce. Other exceptions to the general retirement age of 65 years are gender-neutral, for example, people who suffer longer periods of unemployment may retire earlier as well.

The petitioner in this constitutional complaint is a widower with three children who was born in 1919 and ran his own household. In 1979 he applied unsuccessfully to receive a pension from the Federal Insurance Agency for Employees, claiming that he fell within the scope of Section 25.3. of the EIL. He admitted that Section 25.3. of the EIL as it stands applied only to females but argued that he should nevertheless enjoy coverage following the purpose of the reform. He argued before the agency that the basic principle of gender equality requires his coverage because he was also burdened with two occupations.

The Social Court rejected his complaint filed to contest the denial of the Federal Insurance Agency to grant his coverage under Section 25.3. of the EIL.

The Federal Social Court affirmed the rejection. It argued that an inclusion of the petitioner into Section 25.3. of the EIL would exceed the court’s jurisdiction to interpret statutes. The court held that the basic rights to equality cannot be used to alter the objectives of Section 25.3. of the EIL. Such categorizations may only be questioned when they are clearly erroneous, which, the court noted, was not the case here. Finally, the Federal Social Court stated that a change of social reality may have occurred since 1957, but that it had not gone far enough to question the validity of Section 25.3. of the EIL.

The petitioner then filed a constitutional complaint to contest the Federal Social Court’s decision. He claimed a violation of the principle of gender equality (Gleichberechtigungsgrundsatz) according to Articles 3.2. and 3.3. of the Basic Law. The petitioner argued that due to a change of social and societal reality the preferential treatment of women which was introduced in 1957 counters notions of reason and justice. He claimed that today many men have to cope with two occupations as well. Moreover women’s life-expectancy exceeded that of men by six years and men are two-and-a-half times more likely to pass away before reaching the age which makes them eligible to collect a pension. He concluded that if some woman without children were entitled to retire at the age of sixty, that he should be eligible to do the same--given the fact the he is a widower with three children, some of whom were still in school.

The Federal Minister of Labor and Social Order, acting on behalf of the Federal government, filed a brief with the Federal Constitutional Court LEFTing Section 25.3. of the EIL. The government argued that the divergent treatment of men and women is constitutional because it is due to objective biological and functional differences. The biological difference lies in the lower physical strength and endurance of women. The functional difference lies in the double burden of women who have employment and household duties to perfom. The government argued that the social change that occurred after 1957 does not significantly change the burden on women who are also employed. The government finally noted that the fact that although some women never have to run a household and raise children while some men have to raise children, does not automatically render Section 25.3. of the EIL unconstitutional. Such cases constitute rare exceptions which the legislator may ignore when regulating widespread phenomena in the society through the use of general categorizations. The disadvantaged men are always free to individually claim a right to stop working after having turned 60 year-old.

Is the general provision of Section 25.3. of the EIL in violation of Articles 3.2. and 3.3. of the Basic Law because it grants certain women the general right to retire and receive a pension at the age of 60 years whereas men generally can only retire and receive a pension at the age of 65 years?

Holding by the First Senate:
No, it is not.

In the first part of the discussion the Federal Constitutional Court finds that the petitioner has standing despite the fact that he passed the age of 65 at the time of this decision. Thereafter the court notes that the actual effect of the disputed general exception of Section 25.3. of the EIL is not very significant. Other exceptions, such as the possibility to retire earlier after longer periods of unemployment, have the practical effect that the average age of retirement for both genders now is 58 years.

Thereafter the Federal Constitutional Court notes that Section 25.3. of the EIL has frequently been debated by courts and scholars and the issue of its constitutionality rarely arose. Then, before embarking on the actual discussion, the court reviews three briefs filed by the German Association of Female Jurists, the German Association of Unions and the Federal Insurance Agency for Employees which, for various reasons, all find Section 25.3 of the EIL constitutional.]

The three cited briefs cannot be contested from a constitutional [point of view].

1. The regulation was introduced at a time at which the principle of gender equality from Article 3.2. of the Basic Law was already binding. In the legislative process it was justified with social considerations, namely the double burden which many women [who are covered by the national pension insurance system] carry. The Federal Social Court followed this reasoning in the holding which is contested here, [and that court was moreover of] the opinion, that the change in the social reality [since 1957] is not cause for a departure from this view.

2. As the Federal Constitutional Court has already elaborated upon in its first decision on widows’ pensions, the option granted to the woman to receive a pension already at the age of 60 instead of 65 years, is to be understood through the concept of social compensation.

a) The standard of review is Article 3.2. of the Basic Law. The principle of gender equality contained therein is equivalent to the ban of discrimination in Article 3.3. of the Basic Law, which rules that no one may be prejudiced or favored ‘because of his sex’. It has been applied strictly in the administration of justice, namely [in cases] where women have been disadvantaged. The basic right was intended to offset years of discrimination against women. A differentiation according to gender is permissible, when, in the light of objective biological or functional differences, special regulations are desirable or necessary.

b) The principle of gender equality has, in past judicial decisions, favorably been applied as a legitimate means to end discrimination. Recently it has been debated, whether [one can derive] from the principle of gender equality, positive duties on the part of the legislator to promote and support the realization of the basic right. In this context the principle of social justice (Sozialstaatsprinzip), appears to demand positive state action. At issue in this case is whether the legislator had the right to enact the legislation in question.

c) In the assessing whether such disadvantages occurred, how extensive they are, and which compensating measurements are to be considered, [one has to commence the analysis] from the perspective of the legislator. Apart from the double burden borne by women there are additional circumstances, which the legislator was entitled to (typisierende Betrachtungsweise).

The Federal Insurance Agency for Employees correctly points out that the educational deficit of women, which in the past significantly lessened their professional standing and thereby their compensation and pension, in typical cases has its origin in the anticipation of the expected position of the women as a mother. [The fact] that women are oftentimes employed in [low-income positions with few chances of advancement] probably has similar causes. The typical interruptions of compensated employment due to time spend with pregnancy, birth and child-rearing, moreover often have the result that [women cannot take advantage of another exception to the general retirement age of 65 which allows for retirement at the age of 63, because they do not fulfill the requirement of having paid retirement insurance premiums for 35 years]. All of [these factors] can be traced in their [central meaning] to the function, or at least the potential function, of the female insured [person] as spouse and mother, thereby to biological circumstances.

d) The advantages granted to women for these disadvantages [in the form of Section 25.3. of the EIL], which are not very significant, do not seem worrisome. Whether it had been more correct to seek compensation by other means is not for the Federal Constitutional court to decide. In particular, the court cannot object to measures of the legislator with the justification that other [measures] would have been more efficient or useful.


The change in the factual circumstances [in the society], which has already taken place or is in the process of taking place, and the adjustments of the legal order to the commanded equality of men and women, cause one to expect, that the circumstances, which influence the constitutional review for the purpose of compensating for disadvantages, over the course of continuing development, will lose significance. [At what point in time] this will be the case, and which conclusions will have to be drawn [from such a development], is first and foremost to be judged by the legislator.
[signed by all eight judges]

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