I. Summary

I.
Civil servants are granted a family allowance in addition to their basic salary. Its amount is commensurate with the remuneration grade and the salary step that reflects the family relationship. Pursuant to § 40.1.1 of the Federal Civil Servants’ Remuneration Act (Bundes-besoldungs¬gesetz) (hereinafter: the Act), step 1 covers married, widowed and divorced civil servants insofar as they are obliged to provide maintenance on the basis of marriage (“married person’s allowance”). In accordance with § 40.1.4 of the Act, other civil servants only receive the step 1 family allowance if they grant maintenance to a person taken in to live in their dwelling and the income of this person does not exceed a certain amount.

The complainant was a civil servant until mid-2004. She established a registered civil partnership at the end of 2001. Her action for payment of the married person’s allowance before the administrative courts, including the Federal Administrative Court, was unsuccessful. With her constitutional complaint, she asserts a violation of the general guarantee of the right to equality as set out in Article 3.1 of the Basic Law. Over and above this, she took the view that her right to her lawful judge under Art. 101.1.2 of the Basic Law had been violated because the Federal Administrative Court had not met its duty to submit a reference for a preliminary ruling to the European Court of Justice in accordance with Article 234.3 of the Treaty establishing the European Community with regard to Directive 2000/78/EC.

II.
The constitutional complaint was not admitted for decision for lack of prospects of success. The First Chamber of the Second Senate of the Federal Constitutional Court found that the restriction of the married person’s allowance to married civil servants is constitutionally unobjectionable.

The ruling is based on the following key considerations:

There has been no violation of the general guarantee of the right to equality under Art. 3.1 of the Basic Law. The favouring of married civil servants over civil servants in a registered civil partnership by § 40.1.1 of the Act is confined to giving married persons the step 1 family allowance already on the basis of their civil status and without regard for the income of their spouse. Thus, with regard to married persons, the financial burdens typically assumed to ensue from marriage lead to a blanket provision of the family allowance. In contrast, with regard to registered civil partnerships, it is necessary to substantiate these burdens on a case-by-case basis. The complainant refused to provide information on her actual financial burdens. The favouring of married civil servants is justified by Art. 6.1 of the Basic Law. This constitutional provision places marriage under the special protection of the state; as a constitutional decision on values, it places the state under an obligation to protect and promote marriage. This constitutional mandate entitles the legislature to prioritise and favour marriage, as the formal partnership between a man and a woman, over other living arrangements.

Furthermore, there has been no violation of the principle of alimentation (Alimentationsprinzip). In the context of its obligation to take care of civil servants’ welfare in line with their office, the legislature must ensure that each civil servant is also able to meet his maintenance obligations towards his family. In that respect, the civil servant’s family is deemed to include spouses and the community of a civil servant with his children. The term ‘family’ within the meaning of the principle of alimentation does not include a civil servant’s civil partner even after the introduction of the registered civil partnership as a new type of marital status.

The Federal Administrative Court was not obliged to submit a reference for a preliminary ruling to the European Court of Justice. The European Court of Justice has not yet decided whether Directive 2000/78/EC prohibits granting remuneration elements such as the family allowance to married persons only, thereby excluding staff living in registered civil partnerships. The Federal Administrative Court has not unjustifiably exceeded its margin of assessment which it had because of this yet incomplete case-law. Taking account of the recitals to the Directive, it reached the justifiable conclusion that Directive 2000/78/EC did not create an obligation to also grant staff who have entered into a registered civil partnership remuneration elements granted to married staff.