Headnotes

to the Judgment of the First Senate of 26 May 2020

- 1 BvL 5/18 -

Pension sharing following divorce – external division

1. Pension sharing following divorce can be unconstitutional where the share of the person obligated to transfer their share is reduced and this reduction is not reflected in an independent share obtained by the person entitled to receive it. Transfer losses due to an external division may miss the purpose pursued by the reduction of the share and thus be unconstitutional (clarifying BVerfGE 53, 257 <302 f.>; 136, 152 <169 ff. para. 40 ff. ).

2. In addition to the person obligated to transfer their share, Art. 14(1) of the Basic Law also protects the person entitled to receive the share in the context of pension sharing. Transfer losses due to an external division must also be measured against their fundamental right to property.

3. When courts determine the transfer amount relevant to the external division pursuant to § 17 of the Pension Sharing Act, they must consider not only the fundamental rights of the obligated and the entitled person, but also the interests of employers to have the option of choosing the external division method and to be obligated to bear, in that process, solely a cost-neutral outflow of capital.

4. The Basic Law also bars provisions that are phrased neutrally and do not, even implicitly, aim to disadvantage anyone, but that, in reality, nevertheless predominantly place women at a disadvantage. Due to how family and employment-related activities are allocated between spouses in most cases, far more women than men are affected by the detrimental effects of external division. Such de facto disadvantaging can only be justified by sufficiently weighty reasons.

5. When applying the external division method to pension sharing pursuant to § 17 of the Pension Sharing Act, it is for the courts to determine the transfer amount that must be paid as a capital amount in a manner ensuring that the fundamental rights of all persons involved are protected.

FEDERAL CONSTITUTIONAL COURT

- 1 BvL 5/18 -

IN THE NAME OF THE PEOPLE

In the proceedings
for constitutional review of

the Federal Constitutional Court – First Senate –

with the participation of Justices:

Vice-President Harbarth,

Masing,

Paulus,

Baer,

Britz,

Ott,

Christ,

Radtke

held on the basis of the oral hearing of 10 March 2020:

Judgment

1. § 17 of the Act on Pension Sharing of 3 April 2009 (Federal Law Gazette I p. 700) is compatible with the Basic Law.

R e a s o n s:

A.

[Excerpt from Press Release No. 40/2020 of 26.05.2020

These referral proceedings concern § 17 of the Act on Pension Sharing (Gesetz über den Versorgungsausgleich, Versorgungsausgleichsgesetz – VersAusglG), which allows for an external division of certain entitlements to workplace pensions following a divorce even without the consent of the person entitled to receive a share of their spouse’s pension. In principle, pension sharing is carried out today by way of so-called internal division, which means that family courts establish a pension entitlement for the person entitled to receive a share of their spouse’s pension vis-à-vis the same pension fund in respect of which their spouse also has a pension entitlement. However, pursuant to § 17 VersAusglG, upon request of the pension fund, pensions must be shared by way of so-called external division, even against the will of the entitled person. This applies to pension entitlements vis-à-vis a pension fund with direct employer contributions (Direktzusage ) or vis-à-vis a pension fund with a defined-contributions scheme (Unterstützungskasse ) if these entitlements do not exceed the upper earnings limit for the statutory pension scheme (Beitragsbemessungsgrenze ). When the external division method is applied, the entitlement is not established vis-à-vis the pension fund of the spouse who is obligated to transfer a share of their pension, but vis-à-vis another pension fund.

So-called transfer losses are the key aspect of the order of referral. These derive from the way in which the current capital value of the share of the pension entitlement, accrued over the course of the marriage and to be divided in the context of pension sharing, is calculated. The current capital value is the basis for calculating the transfer amount that the pension fund of the obligated person must pay, as a capital amount, to the pension fund of the entitled person. This transfer amount, to be paid by the “former” pension fund, is calculated, inter alia, by discounting the interest on the total amount of the pension payments that might have been paid out in the future to the point in time at which the pension entitlement is assessed. If the discount rate is higher than the interest rate currently applied by the entitled person’s pension fund, this pension fund will usually set up entitlements based on the capital amount transferred to it, so that the entitled person can only expect pension payments that have been reduced accordingly. Effectively, this predominantly affects wives, not husbands.

End of excerpt ]

[…]

I.

[…]

II.

[…]

III.

The Hamm Higher Regional Court (Oberlandesgericht ) suspended the initial proceedings in accordance with Art. 100(1) first sentence of the Basic Law (Grundgesetz – GG) and § 13 no. 11, § 80 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) and referred to the Federal Constitutional Court the question whether § 17 VersAusglG was constitutional. The Higher Regional Court argued that § 17 VersAusglG violates the principle of equal division of assets (Halbteilungsgrundsatz ) deriving from Art. 6(1) in conjunction with Art. 3(2) GG and the general guarantee of the right to equality. It considers unconstitutional that an approximately equal division of shares is not guaranteed up to a very large threshold amount when using the external division method pursuant to § 17 VersAusglG and that the pension fund transferring the share can carry out external division without or against the will of the entitled person. The court further stated that a problem arises from differences between the determinations of the capital value of the share by the transferring pension fund on the one hand and the conversion/re-calculation of this capital value into a pension entitlement by the entitled person’s prospective pension fund. The different amounts were said to result predominantly from the use of different interest rates. The court explained that pension fund providers usually calculate the capital value of entitlements financed on the basis of accrual using the interest rate laid down in the Accounting Law Modernisation Act (Gesetz zur Modernisierung des Bilanzrechts , Bilanzrechtsmodernisierungsgesetz – BilMoG; § 253(2) Commercial Code, Handelsgesetzbuch – HGB), which is tolerated by the legislator. This interest rate, the court states, is considerably higher than the fixed interest rate on investments in Germany and which is applied to pension assets by pension fund providers.

[…]

The Higher Regional Court also stated that where the actuarial interest rate changes by only one percentage point, a change of an entitlement value of at least 10%, and even more for younger entitled persons, will result. The Federal Court of Justice (Bundesgerichtshof ) showed this distortion by comparing interest rates from 2009 to 2015 ([...]). The Higher Regional Court put forward that persons entitled to receive a share – assuming they are identical in biometrical terms – can, on account of external division, expect a pension that is lower by sometimes far more than 50%. According to a rough estimate, by 2017 more than 60,000 persons have been affected by significant deviations.

[…]

IV.

Written statements regarding the referral have been submitted by the Federal Government, the Federal Court of Justice, the Association for Workplace Pensions (Arbeitsgemeinschaft für betriebliche Altersvorsorge ), the German Conference of Family Courts (Deutscher Familiengerichtstag ), the German Bar Association (Deutscher Anwaltsverein ), the Federal Organisation of German Employers’ Associations (Bundesvereinigung der Deutschen Arbeitgeberverbände – BDA), the German Women Lawyers’ Association (Deutscher Juristinnenbund e.V. ) and, as a party to the initial proceedings, the pension fund concerned. All of them also attended the oral hearing except for the Federal Organisation of German Employers’ Associations and the pension fund. [...]

[…]

B.

The referral from the Hamm Higher Regional Court is admissible.

[…]

C.

§ 17 VersAusglG is not unconstitutional. When it is applied in a manner that ensures conformity with the Constitution, it is compatible with the fundamental right to property both of the person obligated to transfer a share of their pension and that of the person entitled to receive this share. It also respects the limits constitutional law places on the de facto disadvantaging of women. In respect of external division, courts must determine the transfer amount in such a way that the entitled person does not face an undue reduction of their pension payments. The act leaves courts the necessary latitude for such decision-making (I.). The question on the extent to which the principle of equal division of assets applies can remain unanswered; it does not give rise to further requirements here (II.). The unequal treatment of holders of an entitlement listed in § 17 VersAusglG vis-à-vis holders of other pension entitlements not listed in § 17 VersAusglG as well as vis-à-vis holders of particularly valuable pension entitlements does not violate the general guarantee of the right to equality (III.).

I.

External division pursuant to § 17 VersAusglG restricts the fundamental right to property of the person obligated to transfer a share of their pension (1.) and of the person entitled to receive this share (2.). However, these restrictions are justified under constitutional law where § 17 VersAusglG is applied in a manner that ensures conformity with the Constitution; they do not result in an impermissible de facto disadvantaging of women (3.).

1. The fundamental right to property of the person obligated to transfer a share of their pension is restricted by the division of their current and prospective pension entitlements in the context of pension sharing (a). In principle, this restriction is justified under constitutional law given that it serves to establish an independent old-age or disability pension scheme for the entitled person. However, when such a reduction is not at least approximately reflected in the pension entitlement received by the entitled person, this restriction of property rights on the part of the obligated person requires special justification (b).

a) The property rights, protected under Art. 14(1) GG, of persons obligated to transfer a share of their pension are restricted by the division of their entitlement to workplace pensions.

[…]

b) In principle, the restriction of the fundamental right resulting from pension sharing is justified (aa). However, to the extent that external division only leads to an entitlement to a reduced pension for the entitled person, this requires special justification (bb).

aa) Pension sharing serves the legitimate purpose of establishing an independent old-age or disability pension scheme for the entitled person. Restricting constitutional property rights of the obligated person for this purpose is, in principle, justified under constitutional law (cf. BVerfGE 136, 152 <167 f. para. 35 ff..> with further references; established case-law).

bb) However, the pension sharing might not be justified where the entitlement of the person obligated to transfer is reduced and this reduction is not reflected in the independent entitlement obtained by the person entitled to receive it.

(1) In such a case, the obligated person makes a sacrifice that misses its purpose (foundationally, BVerfGE 53, 257 <302 f.>). From a constitutional law perspective, the transferred share, in principle, may not, without special reason, be lost nor may the payments resulting therefrom be reduced given that the obligated person acquired the entitlement as a result of their gainful employment (cf. BVerfGE 131, 66 <80>). Thus, in principle, dividing the entitlement into two equal shares neither constitutes sufficient justification for the restriction of the fundamental right of the person obligated to transfer their entitlement, nor is it of relevance for the justification. Rather, what matters is that the entitled person can expect payments on the basis of the entitlement obtained by way of pension sharing that reflect the reduction of the entitlement of the obligated person. By contrast, where, as a result of external division and assuming identical biometrical factors, an entitled person can expect their pension to be lower than the reduction of the obligated person’s pension, special reasons are required to justify this.

(2) […]

(3) […]

(4) […]

2. The fundamental right to property of the entitled person, too, is restricted by external division (a). The restriction must also be specifically justified in cases where, following external division, the entitled person can expect pension payments that are, given the interest rate used to calculate the capital value, lower than the amount that was deducted from the share of the obligated person and lower than what they would receive themselves if an entitlement vis-à-vis the original pension fund were transferred to them by way of internal division (b).

a) aa) The position of the entitled person is protected by Art. 14(1) GG. Pursuant to § 1(1) VersAusglG, entitlement shares obtained during marriage must be divided equally between the divorcees by way of pension sharing. Under this statutory scheme for pension sharing, half of the entitlement of the person obligated to share it becomes the property of the person entitled to receive it. The equal share that must be transferred pursuant to § 1(1) VersAusglG constitutes the constitutional property rights of the obligated person, which then continue to exist as the property rights of the entitled person. [...] The entitled person may assert a potential violation of fundamental rights. Otherwise, entitled persons would not be able to defend against the impairments that arise from external division and also affect them, but would depend on the obligated person they are just divorcing to claim on their behalf the protection, afforded by property rights, against reductions that fail to achieve their purpose (see para. 50 ff. above).

bb) The entitled person’s constitutionally protected position is restricted by the fact that the share of the entitlement in the original pension fund that is made available to the entitled person for the divorce is extinguished as a result of external division. [...]

b) In general, this restriction is already justified because a corresponding entitlement is simultaneously established with another pension fund. However, further justification is also required vis-à-vis the entitled person if external division – assuming identical biometrical factors – results, given the interest rate used to calculate the capital value, in foreseeably lower pension payments than the [corresponding] reduction in payments the obligated person must bear or than what they could have expected if an entitlement were established vis-à-vis the original pension fund by way of internal division.

3. Where, assuming identical biometrical factors, external division pursuant to § 17 VersAusglG results in pension payments from the newly established entitlement that are foreseeably lower than what would have been received in case of internal division or than what was deducted from the entitlement of the obligated person, this requires separate justification both vis-à-vis the person obligated to transfer a share and the person entitled to receive it. Ultimately, external division pursuant to § 17 VersAusglG can be applied in a manner that is in conformity with the Constitution. In and of itself, external division provided for under statutory law in the cases set out in § 17 VersAusglG serves constitutionally legitimate purposes (a). When the capital value of the existing entitlement is calculated in order to carry out external division, the conflicting interests enshrined in fundamental rights of the employers on the one hand, and of the obligated as well as the entitled person on the other hand, must be taken into account and an adequate balance must be struck between them (b). Contrary to the referring court’s opinion, § 17 VersAusglG, even read in conjunction with other provisions, leaves courts the possibility to determine the transfer value for external division in a manner that prevents transfer losses that would be excessive and thus impermissible under constitutional law (c). In this context, courts must have regard to certain procedural requirements arising from fundamental rights (d).

a) Allowing the external division of the entitlements listed in § 17 VersAusglG (workplace pensions on the basis of direct employer contributions or a defined-contribution scheme) even beyond the value limit provided in § 14(2) no. 2 VersAusglG serves purposes that are legitimate under constitutional law.

aa) These provisions aim to protect employers who granted workplace pensions by way of direct employer contributions or a defined-contribution scheme from having to extend their pension system to persons they did not choose as a party to their contract. According to the legislator’s reasoning, a higher value limit up to which an employer can demand external division is justified in the case of entitlements stemming from these two so-called direct-type pension schemes given that employers must, in contrast to entitlements stemming from an external pension scheme (direct insurance, pension funds), directly face the consequences of an internal division which involves managing the entitlements of persons who are not part of their company, which entails additional administrative costs (cf. Bundestag document – BTDrucks 16/10144, pp. 30, 42, 60). The legislator’s aim of protecting employers from these consequences of internal division, do not raise any constitutional objections.

bb) Indirectly, § 17 VersAusglG also serves to foster workplace pensions. In particular, the Federal Government emphasised in these proceedings that relief for workplace pension funds is conducive to the socio-political aim to foster workplace pension schemes as pursued by pension sharing, in this case by way of direct employer contributions or a defined-contribution scheme. It is a legitimate aim of the legislator to secure this second pillar of old-age social security (cf. already BVerfGE 71, 364 <395 f.>). The Federal Government plausibly demonstrated that small and medium-sized companies in particular considered the administration of additional entitlements established through internal division to be a considerable burden and that this results in the risk that companies will avoid these two forms of workplace pension schemes.

b) Protecting those employers who offer workplace pension schemes by way of direct employer contributions or a defined-contribution scheme from additional burdens arising from internal division is an aim, however, that cannot be pursued categorically. Rather, when the capital value of the existing entitlement is calculated, as is required for carrying out external division, conflicting interests enshrined in fundamental rights of the employers on the one hand and of the entitled as well as the obligated person on the other hand must be taken into account and a balance that is tenable under constitutional law must be struck between them.

aa) A weighing of interests must consider, on the one hand, the fundamental right to property of both the entitled and the obligated person (1) as well as the limits constitutional law places on the de facto disadvantaging of women (2). On the other hand, it must consider the legitimate interests of employers who have granted workplace pensions by way of direct employer contributions or a defined-contributions scheme: to be spared any additional burdens brought about by internal division and to bear solely a cost-neutral outflow of capital in case of external division (3).

(1) A weighing of interests must consider, on the one hand, the legal positions protected by Art. 14(1) GG of both the entitled and the obligated person. The interest of an entitled person to merely maintain their entitlement particularly vis-à-vis the original pension fund may be set aside in view of the interests in favour of external division. The fact that the entitlement is established vis-à-vis a different pension fund as such constitutes a reasonable (zumutbar ) outcome for the entitled person, in particular given that it usually does not involve any noticeable burden on them. The referring court, too, has not raised any objections in this regard.

However, where external division will foreseeably lead to diminished payments that would not occur in case of internal division, neither the entitled person nor the obligated person, who would in this respect be cut off from a share of their entitlement without any corresponding benefit, are obligated to tolerate this. They both have, in principle, a constitutionally protected interest that the pension payments expected from the new pension, which stem from the entitlement transferred to the entitled person, be – assuming identical biometrical factors – no less than what would have been expected in case of internal division and what must be accepted as a reduction by the obligated person. The transfer amount that must, pursuant to § 14(4) VersAusglG, be paid to the prospective pension fund by the employer as a capital amount must be assessed accordingly.

(2) Furthermore, it must be taken into account that external division pursuant to § 17 VersAusglG can lead to the de facto disadvantaging of women. It is true that § 17 VersAusglG does not distinguish between men and women and does not, even implicitly, aim to disadvantage women. However, the Basic Law also bars provisions that are phrased neutrally and do not, even implicitly, aim to disadvantage anyone, but that, in reality, nevertheless predominantly place women at a disadvantage (cf. BVerfGE 85, 191 <206>; 97, 35 <43>; 104, 373 <393>; 113, 1 <20>; 121, 241 <254>; 126, 29 <53> with further references; 132, 72 <97 para. 57>; 138, 296 <354 para. 144>). In particular Art. 3(3) second sentence GG protects against de facto disadvantaging. This constitutional provision aims to create equal living conditions for women and men. When the second sentence of Art. 3(2) GG was added, it was expressly clarified that the requirement of equal rights also applies to social reality. Thus, it is irrelevant whether unequal treatment is directly and expressly tied to gender. Constitutional law does not only attach relevance to such direct unequal treatment, but also in particular to effects of a provision that are de facto different for women and men (cf. BVerfGE 126, 29 <53> with further references).

More divorced women than men are affected by the disadvantages of external division. The legislator assumed that about 80% of all persons entitled to receive a share are women (cf. BTDrucks 16/10144, p. 44), who bear the disadvantage of transfer losses in case of external division. Far more women than men are affected by these detrimental effects because in most cases family and employment-related activities are allocated between spouses on the basis of an outdated distribution of roles (cf. BVerfGE 85, 191 <207>). Such de facto disadvantaging can only be justified by sufficiently weighty reasons (cf. BVerfGE 113, 1 <20 f.>; 121, 241 <255>; 126, 29 <54>; 132, 72 <97 f. para. 57 f.>; 138, 296 <354 para. 144>).

(3) On the other hand, the balancing must include the interest of employers to have the option of choosing the external division method while at the same time bearing, in that process, solely a cost-neutral outflow of capital. To what extent an employer will be burdened by paying a capital amount establishing an entitlement vis-à-vis a prospective pension fund that is similar to the entitlement that would result from internal division and that corresponds to the reduction of the obligated person’s share, depends on the detailed set-up of the entitlement and the specific circumstances of the individual case.

[…]

b) An adequate balance must be struck between the conflicting interests. In view of the legitimate interests of employers in external division, their interest, too, in paying solely a cost-neutral amount of capital must, in principle, be recognised. However, in this balancing, the disadvantages of external division must not be categorically shifted to the entitled person. Narrow limits are placed on such a one-sided burdening of the entitled person – especially given that, due to how family and employment-related activities are allocated between spouses, it is predominantly women who are entitled to receive the transfer of pension shares and who are affected by the disadvantages of external division.

(1) [...]

(2) […]

(3) The level of reduction of the foreseeable pension payments that must be tolerated under constitutional law in order to allow employers to conduct cost-neutral external division is not laid down in the Basic Law as an exact number. The referring Higher Regional Court stated that such a limit was reached when the discrepancy between the prospective and the original pension was more than 10%. This is not objectionable under constitutional law.

A limit of 10% takes into account the interests of the divorcees protected by property rights as well as the limits to de facto disadvantaging of women set by constitutional law. Given the provision on costs laid down in § 13 VersAusglG, certain losses are to be expected in the case of internal division anyway, because that provision sets out that the costs incurred by internal division can be equally set off against the entitlements of both divorcees, provided they are reasonable (angemessen ).

On the other hand, by setting a limit of 10%, the interests of employers are, as a rule, not disregarded in an unreasonable manner and the objective interest in fostering workplace pension schemes is thereby sufficiently taken into account. As it is, employers are, pursuant to § 14(2) no. 2 VersAusglG, exempt from internal division and the costs related to it in case of very small entitlements regardless of potential transfer losses; this is not objectionable under constitutional law. Depending on the development of interest rates, limiting the reduction in pension payments to a maximum of 10% in the context of an external division pursuant to § 17 VersAusglG might lead to transfer amounts that employers must pay the prospective pension fund and that are not cost-neutral. However, employers can avoid the costs of paying the corresponding amount of capital by choosing the internal division provided for in § 10 VersAusglG, which always remains an option pursuant to § 17 VersAusglG. By way of internal division, employers can entirely avoid a capital outflow that might burden them excessively (cf. BTDrucks 16/10144, p. 43). It is true that this deprives them of the advantages of external division. However, internal division, too, is cost-neutral for employers within the framework of § 13 VersAusglG (cf. Decisions of the Federal Court of Justice in Civil Matters, Entscheidungen des Bundesgerichtshofes in Zivilsachen – BGHZ 209, 218 <237 f. para. 46>). The burden on employers that might arise from internal division is thus limited from the outset. Where, in view of the transfer amount judicially determined, external division cannot be realised in a cost-neutral manner, it is usually reasonable (zumutbar ) to expect the employer to fall back on internal division if a cost-neutral division would lead to transfer losses over 10%.

c) § 17 VersAusglG does not prevent the courts from settling the sharing of pensions in the context of external division in a constitutional manner and, in particular, allows for a determination of the transfer amount that avoids foreseeable unconstitutional effects of external division. Thus, whether the fundamental rights of entitled persons are respected is a question of how the courts apply the relevant provisions to the specific case (see para. 89 ff. below).

aa) The legislator did not of its own create a provision on limiting transfer losses. § 15(2) VersAusglG, which sets out that the chosen prospective pension must guarantee adequate pension payments, also cannot rule out transfer losses arising from the determination of the capital value that must be paid by the original pension fund.

However, the law does not prevent the courts from settling the sharing of pensions in the context of external division in a constitutional manner and, in particular, allows for a determination of the transfer amount that avoids foreseeable unconstitutional effects of external division.

It can be assumed that it is in line with legislative intent that the family courts avoid overly large transfer losses. The 2009 law reform was generally informed by the objective of avoiding transfer losses that occur in the context of pension sharing (cf. BTDrucks 16/10144, p. 37). It is true that the legislator deliberately allowed for external division in case of § 17 VersAusglG and was obviously aware that this could entail to transfer losses (cf. BTDrucks 16/10144, p. 38). However, the legislator assumed that the interest of the entitled person in participating in the pension system was safeguarded given that the entitled person chooses the prospective pension pursuant to § 15 VersAusglG which might offer better conditions than the workplace pension entitlement to be shared (cf. BTDrucks 16/10144, p. 60). However, insofar as such better conditions are now out of the question given specific interest rate developments, the legislator’s assumption rather speaks for an adjustment of the transfer amount by the family courts than against it. In the oral hearing, the Federal Government made it clear that the transfer losses that have in the meantime been sustained when applying § 17 VersAusglG, due to the specific interest rate development, are unintended effects that must be avoided in future, and that it is entirely possible to do this while § 17 VersAusglG continues to apply.

[…]

bb) However, the referring court also considers the referred provision to be unconstitutional as, in its view, practical reasons make it impossible to determine, in the course of court proceedings, the interest rate that was in line with market conditions and applicable at the time of the divorce. […] The Federal Court of Justice countered these concerns convincingly in its written submission in these proceedings before the Federal Constitutional Court. Problems in determining the capital value for external division do not automatically lead to the conclusion that the provision in question is unconstitutional, especially since alternative calculations may involve set figures.

d) Thus, when a pension is shared pursuant to § 17 VersAusglG, it is for the courts to determine the transfer amount that must be paid as a capital amount in such a manner that both the interests of the employers and the fundamental rights of especially the entitled person are respected by avoiding excessive transfer losses.

When external division is carried out in practice, constitutional requirements can be met by establishing, on the basis of the transfer amount proposed by the employer, a constitutionally sufficient pension vis-à-vis the chosen prospective pension fund or the pension sharing fund obligated to take on the entitled person pursuant to § 15(5) second sentence VersAusglG or – insofar as establishing an entitlement is possible there – vis-à-vis the statutory pension scheme. Whether a sufficient pension can be established is to be determined by the family courts.

Where a family court cannot, in a manner satisfying constitutional requirements, establish, on the basis of the transfer amount proposed by the employer, a pension vis-à-vis the chosen prospective pension fund or the pension sharing fund obligated to take on the entitled person pursuant to § 15(5) second sentence VersAusglG or the statutory pension scheme prepared to take on the entitled person, the court must adjust the transfer amount in such a manner that transfer losses, which are disproportionate with regard to the advantages of the external division method (see para. 64 ff. above), are avoided. The Basic Law does not set out the details on how the amount is to be calculated ([...]). Employers must retain the option of choosing internal division with regard to the transfer amount determined by the court.

II.

The referral claims a violation of the principle of equal division of assets following divorce. Whether and to what degree the principle of equal division of assets set out in ordinary law under § 1(1) VersAusglG has further constitutional significance other than constituting a reason justifying restrictions (cf. BVerfGE 53, 257 <296>; 87, 348 <356>; 136, 152 <178 para. 61>; established case-law) is not definitively clarified in the case-law of the Federal Constitutional Court and can remain undecided (cf., however, Federal Constitutional Court, Order of the First Chamber of the First Senate of 2 May 2006 - 1 BvR 1275/97 -, para. 13 ff.). The matter of equally dividing assets in the context of divorce only concerns the relationship between the divorcing parties and not the balancing of interests set out in § 17 VersAusglG in respect of the entitled person and the employer. The principle of equal division of assets serves to ensure equality between the divorcing parties and does not constitute a suitable standard for balancing the interests of the entitled person and the employer.

III.

§ 17 VersAusglG is also constitutional when measured against Art. 3(1) GG. It is true that this provision disadvantages persons holding pension entitlements vis-à-vis a pension fund with direct employer contributions or vis-à-vis a pension fund with a defined-contributions scheme in comparison to persons holding entitlements to other workplace pensions who must accept a unilaterally requested external division only within the limits of the significantly lower amounts set out in § 14 VersAusglG. Furthermore, § 17 VersAusglG disadvantages persons holding pension entitlements that remain below the threshold set out in § 17 VersAusglG and who must therefore accept external division compared to persons holding pension entitlements that exceed the threshold set out in § 17 VersAusglG and are thus subject to internal division. However, both scenarios can be justified if the provisions are applied in the manner ensuring conformity with the Constitution set out above.

[…]