News on payment of the family surcharge – A revealing law chaos


A few weeks ago there was the official ruling of the European Court of Justice. It stated that the denial of a survivor’s pension payment of pension to life partners constitutes direct discrimination on grounds of sexual orientation, Articles 1 and 2 of Directive 2000/78. This ruling was the reason why Mr. Maruko got his widow’s pension as a registered life partner. The Munich adminstrative court decided that a life partner is comparable to a spouse on the respective national – in this case German – pension schemes. This is the only condition, which has to be fulfilled: after the death of a life partner, the surviving partner has to receive a survivor’s benefit equivalent to that granted to a surviving spouse, if under national law, life partnership places persons of the same sex are in a situation comparable to that of spouses. A further comparison was confirmed by the Federal Labor Court of Germany respect to in-house survivor dependants pension.

Recently another question appeared. Some administrative courts and even the Federal Constitutional Court had to decide whether the family surcharge for the Level 1 as part of pay is due for a German official or not. What would be covered if a German official, who lives in a registered partnership is in a situation comparable to that of a spouse.

In answering this question, there are two fronts. There is the Stuttgart administrative court, which has fortunately the opinion that the family surcharge is also granted to officers who live in same-sex partnerships. A refusal of the family surcharge for the Level 1 is a direct discrimination on grounds of sexual orientation. The reason for that is the Directive 2000/78.

On the other side the Hanover administration court, the Federal Constitutional Court and a few days ago the Karlsruhe administration court denied the family surcharge with the same argumentation: The
favoring of married officials finds its justification in Article 6 section 1 of the German Constitution. This Constitution shall record the marriage under the special protection of public order; it committed as a worth crucial principle norm (wertentscheidende Grundsatznorm) the state, which has to protect and promote the marriage. This constitutional order-handling entitles the legislature, to emphasize and encourage the marriage as a formally registered form of community of life between women and men in relation to other life forms. Moreover, the expectations are low that gay couples have children. In the overwhelming number children grow up in marriages. The expectation to have children is more in a long-term partnership to which the marriage has been created for.

Well, I don’t know what to say about this unbelievable argumentation except clearly and politely that the image of marriage – as it is constituted in Article 6 section 1 of the German Constitution – that automatically and normally applied to children is no longer compatible with the current social conditions in this generalization. And what I don’t get is why the child-argument has always been abused to show that same-sex partnerships are not supposed to be permanent. Children are people either; loved by two people, who decided to raise and take care; why is this gender specific feature so important for that? I think the institute of marriage should be covered and being opened to other forms of living communities. It is time for that! A visible sign is that the resistance against the equality is expressed in this law chaos above.

posted on eurOut 26th, February 2009

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