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Date of the national decision State or organisation in which the decision has been given Language of the original decision
26/01/2006 Germany German
Other information for this decision is available in JuriFast

Bundesverwaltungsgericht, Urteil vom 26/01/2006
2 C 43/04


Names of parties : 2 C 43/04

Provisions of national law in the original language and according to the national custom :
Bundesbesoldungsgesetz (BBesG), Paragraphen 1 Abs. 2 No. 3, 39 Abs. 1, und 40 Abs. 1 No. 1 und No. 4
Grundgesetz (GG), Art. 3 Abs. 1, Art. 6 Abs. 1, und Art. 33 Abs. 5
Verwaltungsgerichtsordnung (VwGO), Paragraph 86 Abs. 1 Satz 1

Publication :
Bayerische Verwaltungsblätter 2006 p.441-443
Deutsches Verwaltungsblatt 2006 p.847-850
Die öffentliche Verwaltung 2006 p.696-698
Neue juristische Wochenschrift 2006 p.1828-1829
Neue Zeitschrift für Verwaltungsrecht 2006 p.1075 (résumé)
- Entscheidungen des Bundesverwaltungsgerichts Bd.125 Heft 1/2 p.79-85


Treaties concerned by the decision :
Treaty establishing the European Economic Community (EEC)

Provisions of European Union law :
EC - Council Directive 2000/78/EC


Matters (index marks) : A-01.02

Community law - Principles - Equal treatment and non-discrimination – Pay for German civil servants - Family benefit - Conditions of eligibility - Marriage – Excluded in the case of a registered partnership – No breach of the principles higher law


Examination for the annual report on the implementation of the Community law or quotation in Reflets : T
REFLETS Nº 2/2006


Doctrine comments :

Continuation reserved for the case by the national jurisdiction : The Bundesverwaltungsgericht handed down a ruling on the question of whether a civil servant, a partner in a registered partnership, was entitled to claim family benefit by virtue of the German Civil Servants Pay Act (Bundesbesoldungsgesetz, hereafter referred to as "BBesG"), Article 40(1) of which makes provision for entitlement to family benefit for, among others, married civil servants.
According to the supreme administrative court, such entitlement arises neither from direct application nor application by analogy of the provision contained in the BBesG. The civil servant in question could not be considered a 'married' civil servant since the registered partnership was not a 'marriage' in the common sense but a specific type of marital status. Neither could the provision in question be applied by analogy since the legislature had purposely refrained from introducing such an entitlement for partners within a registered partnership.
The Bundesverwaltungsgericht held that the fact that registered partnerships were excluded from the scope of the aforementioned Article 40 was not in breach of higher law. Accordingly, the principle of equal treatment did not require that a partner in a registered partnership be treated in the same way as a married civil servant. By contrast, where a married individual is concerned, the very fact that a marriage has been performed was sufficient justification for the preferential treatment afforded married individuals. Moreover, the specific protection afforded marriage alone by the German Constitution in itself justified the difference in treatment. In addition, neither did Council Directive 2000/78/EC preclude entitlement to family benefit being refused to a partner in a registered partnership. The directive does not require that the part of the remuneration payable to married employees be paid also to employees who are partners in a registered partnership; indeed the opposite applies, pursuant to recital 22, which states that the directive is without prejudice to national laws on marital status and the benefits dependent thereon. In the context of cases concerning the payment of family benefit to European civil servants, the European Court of Justice, in its judgement handed down on 31 May 2001 (cases C-122/99 and C-125/99), underlined that differential treatment in terms of pay of individuals in a registered partnership as compared with those in a marriage did not constitute discrimination on the grounds of gender or sexual orientation.

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