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Reduction of special payments for Deutsche Telekom civil servants held constitutional
Press Release No. 17/2012 of 06 March 2012
Order of 17 January 2012
2 BvL 4/09
In the course of the reform of Deutsche Bundespost, the enterprise was split up by creating the Postdienst, Postbank and Telekom special funds; in 1994, the special funds were transformed into stock corporations. The transformation took place on the basis of Article 143b that had been newly incorporated into the Basic Law (Grundgesetz - GG). In the first sentence of its subsection 3, Article 143b GG provides that federal civil servants (Bundesbeamte) formerly employed by Deutsche Bundespost shall "without prejudice to their legal status" be given positions in the enterprises succeeding to it (Deutsche Post AG, Deutsche Postbank AG and Deutsche Telekom AG). The transfer of the federal civil servants was regulated in the Staff Legal Provisions Act (Postpersonalrechtsgesetz - PostPersRG) enacted for this purpose. Initially, the civil servants employed by the successor companies of Deutsche Bundespost had a right to receive non performance related special payments according to the provisions applying to all federal civil servants. With effect from 1 January 2004, the amendment of § 10 PostPersRG abolished, according to § 10.1 PostPersRG, the right of the federal civil servants employed by the Bundespost successor companies to receive special payments awarded according to the Federal Special Payments Act (Bundessonderzahlungsgesetz). From 2004, the Act awarded to all other federal civil servants an annual special payment to the amount of 5% of their annual income. The Telekom Special Payments Ordinance (Telekom-Sonderzahlungsverordnung) established a right of the civil servants employed by Deutsche Telekom AG (Telekom) to received special payments; for the vast majority of Telekom civil servants, however, it fell short of the amount to which they would have been entitled according to the Federal Special Payments Act. Before the amendment, the Telekom civil servants' average normal working week had been reduced from 38 to 34 hours with effect from 1 April 2004.
In the three original proceedings, which had been combined for a joint ruling, three Telekom civil servants sued for the payment of the difference between the special payment awarded according to the Federal Special Payments Act and the lower payment awarded according to the Telekom Special Payments Ordinance. The Federal Administrative Court (Bundesverwaltungsgericht) submitted to the Federal Constitutional Court the question of the constitutionality of § 10.1 PostPersRG. It holds the view that the provision infringes the general principle of equality because, by being excluded from the award of an annual special payment, the Telekom civil servants are without a valid reason placed at a disadvantage in comparison to other federal civil servants.
The Second Senate of the Federal Constitutional Court ruled that § 10.1 PostPersRG is compatible with the Basic Law. The abolition of the special payment that is effected by the provision does not infringe the principle of equal pay enshrined in Article 3.1 GG in conjunction with Article 33.5 GG.
In essence, the decision is based on the following considerations:
1. With regard to the remuneration of civil servants, it follows from the traditional principles of the permanent civil service guaranteed in Article 33.5 GG that as a rule, civil servants of a given public sector employer who have the same or comparable posts within the same career structure are to receive the same pay. However, the principle of equal pay does not apply without reservations. Unequal treatment is permissible if it is objectively justifiable against the standard of the general principle of equality under Article 3.1 GG.
The principle of equal pay also applies in regard to the civil servants formerly employed by Deutsche Bundespost in comparison to the other federal civil servants. This is because in its first sentence, Article 143b.3 GG not only guarantees them the mere status as civil servants but also the overall legal position of civil servants that is connected with the status and derived from it. This includes the federal civil servants' right to equal pay. The continued employment in a (private) successor company of Deutsche Bundespost is not intended to result in any curtailment of the legal positions that concern their office with regard to their status as civil servants. This does not rule out, however, that reasons which justify unequal treatment with regard to other civil servants are derived from the special characteristics of the civil servant's tasks in a private enterprise. Article 143b.3 GG sentence 1 does not provide any protection going beyond the protection of status. Hence it does not protect the civil servants of the Bundespost successor companies from an amendment or abolition of the civil servants' legal positions that are established under non-constitutional law. Such protection would result in a privileged treatment in comparison to that of the other federal civil servants which would not be justifiable by the privatisation or otherwise; other civil servants as well merely have the right to equal treatment that is enshrined in Article 3.1 GG in conjunction with Article 33.5 GG, a right which can be restricted for objective reasons of sufficient weight.
2. The provision of § 10.1 PostPersRG is compatible with the equal-pay principle because the unequal treatment effected by the abolition of the special payment of the civil servants of the Bundespost successor companies in comparison to that of the other federal civil servants can rely on an objective and sufficiently weighty reason for differentiation.
The objective pursued with the abolition of the special payment, namely to strengthen the Bundespost successor companies' competitiveness, is sufficiently weighty as to justify unequal treatment. According to Article 87f.1 GG, the Federation shall ensure the availability of adequate and appropriate postal and telecommunications services throughout the federal territory to prevent an undersupply of the population during and after the privatisation of the posts and telecommunications sector. Measures to abolish existing obstacles to functioning competition therefore appear necessary and permissible as manifestations of the federal task of securing infrastructure. Furthermore, the legislature's assessment that a mitigation of the Bundespost successor companies' disadvantages in the area of personnel management in comparison to other private enterprises is suitable and necessary for creating comparable and fair conditions of competition is constitutionally unobjectionable.
The Telekom civil servants' unequal treatment effected by the reduction of the special payment was also not disproportionate. The federal legislature's balancing of its infrastructure-related obligations arising from the constitution and its guarantee responsibility under civil-service law for the former Deutsche Bundespost civil servants is not inappropriate. The possibility, created according to § 10.2 PostPersRG, of making separate arrangements with regard to performance-related pay for the civil servants of the Bundespost successor companies, compensated, partially at least, for the abolition of the special payment according to the Federal Special Payments Ordinance. Apart from that, it has to be taken into account when reviewing proportionality that the weekly working hours of the Telekom civil servants affected by the abolition of the special payment had been reduced. In spite of the close connection with the reduction of working hours, § 10.1 PostPersRG also does not infringe the ban on involuntary part-time work of civil servants. This is not a case of part-time work simply because the reduced weekly working hours are not a fraction of the normal working hours but are indeed the new normal working hours. Above all, under the law on remuneration, part-time work would have to be reflected in a corresponding reduction of the basic salary. In the instant case, however, the basic salary was unaffected by the reduction of the working hours. Finally, the review of proportionality has to take into account that the abolition of the special payment concerns a component of remuneration which, within the limits of a maintenance that all in all is in keeping with the office (amtsangemessene Alimentation), is in principle at the free disposal of the legislature enacting laws on remuneration.