Submission by the Federal Social Court on the clarity of the law on occupational injury compensation based on the “East reduction factor” inadmissible

Press Release No. 54/2012 of 12 July 2012

Order of 4 June 2012
2 BvL 9/08

Since 1997, the Occupational Injuries Compensation Act (Dienstbeschädigungsausgleichsgesetz – DbAG) has provided a stand-alone payment as a compensation for occupational injuries, the occupational injury compensation, for civil servants of the former GDR who in the past, as members of the GDR special pensions systems, used to receive a partial occupational injury pension for injuries suffered during service. According to the version of § 2 sec. 1 DbAG from 2006 which came into effect retroactively on 1 January 1997 and is applicable for the period relevant here, the occupational injury compensation was to be paid at the level of the basic pension in accordance with § 31 in conjunction with § 84a of the Federal War Victims Pensions Act (Bundesversorgungsgesetz – BVG). The latter provision made reference to the provisions of the Unification Treaty which stipulated that the basic pension according to § 31 BVG was to be reduced by a specific “East reduction factor” calculated according to the relationship between the standard disposable pension in the acceding territory and the standard disposable pension in the old federal territory. In respect of the concept of “standard disposable pension” the provision of the Unification Treaty refers in turn to § 68 sec. 3 SGB VI (Sixth Book of the Code of Social Law). The definition of “standard disposable pension” contained therein has been amended several times since the original 1989 version of § 68 sec. 3 SGB VI, also during the period from 1999 which is relevant here.

On account of injuries suffered whilst in service, the plaintiffs in the original court case, who had been members of the former GDR special pensions systems of the National People’s Army or the People’s Police, had been receiving occupational injury compensation since 1997, respectively reduced in accordance with the “East reduction factor”. Their actions seeking the determination of the occupational injury compensation without taking into account the “reduction factor”, led to the submissions by the Federal Social Court which considers the new version of § 2 sec. 1 DbAG created in 2006 to be incompatible in terms of the constitutional principle of clarity of the law and justiciability, as the provision refers by means of a reference chain to the regulation of the Unification Treaty regarding the reduction of the occupational injury compensation based on an “East conversion factor”, the ascertainment of which in turn refers to the provision of § 68 SGB VI. Neither for a judicially inexpert addressee, nor with the help of conventional judicial interpretation methods, the Federal Social Court holds, is it possible to ascertain what the level of the “East conversion factor” should be and for which periods it should apply respectively.

The second Senate of the Federal Constitutional Court has decided that the submissions are inadmissible because they do not satisfy the requirements which exist with regard to substantiating a submission.

The Decision is Essentially Based on the Following Considerations:

A court can only obtain a decision by the Federal Constitutional Court on the constitutionality of a statutory regulation in accordance with Art. 100 sec. 1 of the Basic Law (Grundgesetz – GG) if it has meticulously checked its constitutionality. This requires the court to debate the norm put forward for checking in detail, to take into account the views developed in legal practice and literature and to investigate various interpretation options. The different views concerning the conceivable interpretation options of statutory law must be presented, debated and constitutionally appraised with a regard for the circumstances of the case the decision rests on. As far as the requirements of sufficient certainty and clarity are concerned, the submitting court must notably also argue that and why opting for one of the interpretation options presented would transgress the competences of a law-applying body to answer open questions of interpretation and solve interpretation problems by means of the conventional judicial methods.

The statements made by the Federal Social Court concerning the unconstitutionality of § 2 sec. 1 DbAG do not fulfil these requirements. The submission orders do not confront the regular courts’ task of seeking routes to a decision on the merits. Beyond merely highlighting areas of doubt, no effort has been made to deduce the legislative content of the norm with the help of the usual interpretation methods. In fact the submission orders cite plenty of interpretation questions in detail, in particular in respect of the reduction formula in the Unification Treaty, and state several times that the relevant content of the norm cannot be defined with the help of judicial interpretation methods. However, they at best endeavour to provide a fragmentary interpretation of the norm submitted; where in some instances they perform their own interpretation instead of merely presenting open questions, they do not demonstrate that the interpretation which they make or assume would transgress the competences of the jurisdiction to clarify questions of interpretation. So for example, where judicial interpretation options are denied with regard to the requirement of parliamentary approval, this approach does not deal with the fact that the very objective of the interpretation is to ascertain the intent of the legislature which is objectified in the law, and that consequently, it does not follow from the mere need for interpretation of a norm that a legislative decision demanded by the principle of the requirement of parliamentary approval reservation has not been made. Moreover, for example, the submission orders do not adequately debate which requirements the principle of certainty and clarity imposes on the standards for the calculation of the occupational injury compensation. For instance, there is no discussion in this context that the principle of certainty and clarity, according to the jurisdiction of the Federal Constitutional Court, does not require that the content of statutory regulations must essentially be transparent to the citizen without the help of judicial experts, but that various circumstances are relevant in this respect and the certainty requirements are somewhat lower for norms which do not or do not significantly affect fundamental rights, and for norms which are not of the type where it must be possible for addressees and persons affected to adapt their conduct to the content of the norm in detail and in a foresighted manner when exercising fundamental rights. Various obviously self-evident interpretation options are also not discussed.