The claimant is challenging the offsetting of capital amounts for service periods of intergovernmental deployment to his pension (Ruhegehalt).

The claimant was employed by the defendant as a civil servant at the highest office of the higher intermediate technical service (technischer Regierungsoberamtsrat). In the period from 1 August 2005 to 17 October 2008 he was granted leave of absence for his activity at a NATO agency (NAHEMA). For this he received a capital amount of EUR 62,750.27 as a pension.

At the end of the month of January 2009 the defendant retired the claimant. By notice of 6 April 2009, the defendant suspended the pensions (Versorgungsbezüge) starting from 1 February 2009 in the amount of EUR 343.64 per month and requested reimbursement of the excess pension payments for the period from 1 February 2009 to 30 April 2009 in the amount of EUR 490.34. The defendant based its decision on a capital amount of EUR 56,988.65. The claimant's objection (Widerspruch) against the notice and the subsequent action before the Administrative Court (Verwaltungsgericht) have remained unsuccessful.

The Higher Administrative Court (Verwaltungsgerichtshof) annulled the notice of the defendant in the form of the objection notice insofar as the pensions of the claimant starting from 1 February 2009 that exceed the monthly amount of EUR 320.77 are suspended and insofar as pensions paid in excess above and beyond the amount of EUR 421.73 were claimed back from the claimant for the period from 1 February 2009 to 30 April 2009. In as far as the appeal on points of fact and law goes beyond this, the Higher Administrative Court dismissed it.

Both the claimant and the defendant filed an appeal on points of law against this.

The claimant's appeal on points of law was partially successful; the defendant's appeal on points of law was dismissed.

10 The decisive legal basis for the suspension (Ruhen) of the pension in the present case is section 56 of the Act on Civil Servants' Pensions and Benefits (BeamtVG, Beamtenversorgungsgesetz) in the version promulgated on 20 December 2001 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 3926) with the amendments that shiftily entered into force by the Act Reorganising Civil Service Law (Dienstrechtsneuordnungsgesetz) of 5 February 2009 (BGBl. I p. 160 - BeamtVG 2009) (1.). The contested suspension notice (Ruhensbescheid) is partially unlawful with regard to the suspended amount (Ruhensbetrag) as well as the amount reclaimed since the above legal provisions partially breach EU law due to the use of gender-specific mortality tables. The judgment on the appeal on points of fact and law insofar violates federal law (section 137 (1) no. 1 of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung); and the judgment is also based on this violation (2.). The suspension of the pension without any limitation in time is lawful (3.).

11 1. The relevant point in time for assessing the factual and legal situation is governed by substantive law (established jurisprudence; see Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), judgments of 31 March 2004 - 8 C 5.03 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 120, 246 <250>, of 25 November 2004 - 2 C 17.03 - BVerwGE 122, 237 <241> and of 13 December 2007 - 4 C 9.07 - BVerwGE 130, 113 para. 10).

12 Suspension notices are declaratory administrative acts the effect of which is renewed on a monthly basis and for which the factual and legal situation applicable in the respective month is decisive. This results from the very fact that the suspension takes place by virtue of law and suspension notices are permissible but not necessary. Within the scope of suspension provided for by law, such an administrative act therefore merely has a declaratory meaning (BVerwG, judgments of 26 November 2013 - 2 C 17.12 - (...) para. 10 and of 15 November 2016 - 2 C 9.15 - (...) para. 18 et seqq.). This statement of the employer does not change the fact that the lawful level of the suspended amount each month results from the law applicable in the said month and the facts existing in that month.

13 From the moment the claimant was retired at the end of January 2009 the transitional provision of section 69c (5) BeamtVG 2009, the scope of which was extended retroactively with effect from 28 March 2008, has to be applied in the first place. Since the claimant performed his service periods within the meaning of section 56 BeamtVG for the first time after 1 January 1999, section 69c (5) first sentence BeamtVG 2009 leads to the application of the respectively latest version of section 56 BeamtVG without an analysis whether an older, more favourable version of the provision is to be applied (Günstigkeitsvergleich) according to section 69c (5) second sentence BeamtVG 2009.

14 In the case of the claimant, this was initially section 56 BeamtVG 2001 with the amendments that shiftily entered into force by the Act Reorganising Civil Service Law of 5 February 2009. Concerning calculation of the minimum suspended amount, this provision was initially amended by section 69e (2) first sentence second half-sentence BeamtVG 2001 and section 69e (3) BeamtVG 2001, which for a certain period of time provided a different factor for determining the suspended amount. With the entry into force of the Act Reorganising Civil Service Law, section 69e (2) first sentence second half-sentence BeamtVG 2001 was replaced by section 69e (2) fourth sentence BeamtVG 2009.

15 The provision for the dynamisation of capital amounts in section 55 (1) eighth sentence BeamtVG 2009 applies in the case of the claimant. It covers capital amounts of civil servants who have retired after 28 March 2008 (BVerwG, judgment of 5 September 2013 - 2 C 47.11 - (...) para. 12). The conversion of the claimant's capital amount into a pension is determined by section 55 (1) ninth sentence BeamtVG in the version promulgated on 19 November 2010 (BGBl. I p. 1552). This version of section 55 (1) ninth sentence BeamtVG is applicable to all civil servants who, like the claimant, retired or will still retire starting from 1 January 2009 (BVerwG, judgment of 5 September 2013 - 2 C 47.11 - (...) para. 16).

16 Calculation of the maximum limit within the meaning of section 56 (2) BeamtVG 2009 is based on section 69e (2) first sentence first half-sentence BeamtVG 2001 and, later, according to section 69e (2) first sentence BeamtVG 2009 on section 54 (2) BeamtVG in the version applicable until 31 December 2002. However, it does not differ from the later versions of section 54 (2) BeamtVG concerning no. 1 of the first sentence that is relevant here (see BGBl. 1999 I p. 322 <341>; BGBl. 2001 I p. 3926 <3932>; BGBl. 2009 I p. 160 <233>).

18 2. The suspension notice of 6 April 2009 in the form of the objection notice of 24 November 2009 is partially incompatible with EU law due to the use of gender-specific mortality tables with regard to the level of the suspended amount as well as the amount reclaimed. When converting capital amounts paid to male civil servants into pensions, currently, this leads to the same multiplier having to be used that is used for female civil servants (a). This results in an initial monthly suspended amount of EUR 299.82. The amount assumed by the Higher Administrative Court is based on the application of a mortality table that treats everybody in a standardising way by calculating average values that is contrary to EU law (b).

19 a) The conversion of capital amounts into pensions using gender-specific mortality tables in accordance with section 56 (3) third sentence BeamtVG 2009 in conjunction with section 55 (1) ninth sentence BeamtVG 2010 and the table relating to section 14 (1) fourth sentence of the Valuation Act (BewG, Bewertungsgesetz) in the version promulgated on 24 December 2008 (BGBl. I p. 3018) breaches the principle of equal pay guaranteed by EU law in article 157 of the Treaty on the Functioning of the European Union (TFEU) (aa). This means that the suspension amount for a male civil servant has to be calculated in the same manner as that for a female civil servant until measures to establish equality have entered into force (bb). Proceedings to request a preliminary ruling under article 267 TFEU are not necessary due to the clear case-law of the Court of Justice of the European Union (CJEU, hereinafter Court of Justice) (cc).

20 aa) The conversion of capital amounts into pensions using gender-specific mortality tables breaches article 157 TFEU (see already on this issue BVerwG, judgment of 5 September 2013 - 2 C 47.11 - (...) para. 29 et seqq.).

21 The provisions of the Act on Civil Servants' Pensions and Benefits lead to the suspension amount being calculated using the table relating to section 14 (1) fourth sentence BewG. Section 14 (1) fourth sentence BewG provides that the Federal Ministry of Finance shall compile the multipliers for the capital value of a lifelong use or benefit based on age and gender of the person entitled to the pension in a table and publish this list together with the date of the publication of the mortality table in the Federal Tax Gazette (Bundessteuerblatt). The differentiation by gender that is provided for here leads to different suspension amounts for men and women and is therefore incompatible with article 157 TFEU.

22 In accordance with the established case-law of the Court of Justice of the European Union the principle of equal pay codified in the primary law of article 157 TFEU is directly applicable (CJEU, judgments of 9 February 1982 - Case 12/81, Garland - (...)para. 15 and of 14 December 1993 - C-110/91, Moroni - (...) para. 23). The pension granted under the Act on Civil Servants' Pensions and Benefits falls within the scope of application of article 157 TFEU (CJEU, judgment of 23 October 2003 - C-4/02, Schönheit - (...) para. 56 et seqq.; BVerwG, judgment of 23 June 2016 - 2 C 17.14 - BVerwGE 155, 280 para. 25 et seq.; see with regard to Dutch civil servants' pensions and benefits: CJEU, judgment of 28 September 1994 - C-7/93, Beune - (...) para. 41 et seqq., 57; see with regard to French civil servants' pensions and benefits: CJEU, judgment of 29 November 2001 - C-366/99, Griesmar - (...) para. 31 et seqq.).

23 The temporal scope of application of article 157 TFEU, which the Court of Justice of the European Union in its decision in the matter C-262/88 for "overriding considerations of legal certainty" limited to the time after its judgment (CJEU, judgment of 17 May 1990 - C-262/88, Barber - (...) para. 40 et seqq.; see also on this issue: CJEU, judgments of 6 October 1993 - C-109/91, Ten Oever - (...) para. 19 et seq., of 28 September 1994 - C-200/91, Coloroll Pension Trustees - (...) para. 44 et seqq., 57 et seqq. and of 23 October 2003 - C-4/02, Schönheit - (...) para. 100 et seqq.), does not preclude application of the norm in the present case. This is because the gender-differentiating provisions for conversion of amounts into pensions were only introduced after the cut-off date of 18 May 1990 that is relevant for the time limit. This means that the limit would not apply even if the claimant had served his time at the intergovernmental agency prior to 18 May 1990.

24 Differentiation by gender within the context of calculating the suspension amount is incompatible with article 157 TFEU. Article 157 TFEU prohibits any kind of discrimination as between men and women with regard to pay whatever the system which gives rise to such inequality (CJEU, judgments of 14 December 1993 - C-110/91, Moroni - (...) para. 10 and of 28 September 1994 - C-408/92, Smith - (...) para. 11). The principle of equal pay applies to each of the elements of remuneration granted to male and female employees (CJEU, judgment of 17 May 1990 - C-262/88, Barber - (...) para. 32 et seq.). It requires that the employees concerned are in an identical or comparable situation (CJEU, judgments of 9 November 1993 - C-132/92, Roberts - (...) para. 17 and of 9 December 2004 - C-19/02, Hlozek - (...) para. 44).

25 In the case in dispute there is direct discrimination based on gender since section 55 (1) ninth sentence BeamtVG 2010 and section 14 (1) fourth sentence BewG use the gender of the persons concerned directly as a criterion.

26 The statistical difference in life expectancy of men and women is irrelevant from a legal point of view. The Court of Justice of the European Union decided as early as 2007 that the use of actuarial factors fulfils the criteria of discrimination since the necessity of higher actuarial values for women cannot be justified by the need to ensure sound financial management of the Community pension scheme, since the same equilibrium can be attained with 'unisex' actuarial values (CJEU, judgment of 11 September 2007 - C-227/04 P, Lindorfer - (...) para. 53 et seqq.).

27 The CJEU made its view even clearer in 2014 in its judgment C-318/13 concerning Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (Directive 79/7/EEC - OJ L 6 p. 24). It interpreted article 4 (1) of Directive 79/7/EEC, which lays down the principle of equal treatment such that it precludes national legislation on the basis of which the different life expectancies of men and woman are applied as an actuarial factor for the calculation of a statutory social benefit payable due to an accident at work, when, by applying this factor, the lump-sum compensation paid to a man, is less than that which would be paid to a woman of the same age and in a similar situation (CJEU, judgment of 3 September 2014 - C-318/13 - (...) para. 40). It had been argued against this finding that the different compensation amounts depending on the gender of the employee concerned could be justified by the objective difference in the average life expectancy of men and women. Otherwise, women whose statistical life expectancy was higher than that of men would be disadvantaged because the purpose of the lump-sum compensation is to compensate for the consequences of the accident for the remainder of the lifetime of the person injured (ibid. para. 37). The Court of Justice of the European Union opposed this by finding that such a generalisation is likely to lead to discriminatory treatment of male insured persons as compared to female insured persons. Among other things, when account is taken of general statistical data, according to sex, there was a lack of certainty that a female insured person always has a greater life expectancy than a male insured person of the same age placed in a comparable situation (CJEU, judgment of 3 September 2014 - C-318/13 - (...) para. 38; see also: Advocate General van Gerven, opinion of 28 April 1993 - C-109/91, C-110/91, C-152/91 and C-200/91 - (...) para. 35 et seqq.; Advocate General Kokott, opinion of 15 May 2014 - C-318/13 - (...) para. 50 et seqq.). Even if this decision is not referring to article 157 TFEU directly, the general statements of the Court of Justice make it clear that the arguments raised by the defendant in the present case in favour of applying gender-specific mortality tables are not valid under EU law.

28 The older decisions of the Court of Justice of the European Union in the cases C-152/91 and C-200/91 are no obstacle to this. The Court of Justice stated there that the obligation of the employer under article 157 TFEU is not related to the funding arrangements chosen to secure the periodic payment of the pension. Unlike payment of the pensions, these funding arrangements do not fall within the scope of application of article TFEU. This conclusion necessarily extends to the conversion of part of the pension into a capital amount and the transfer in the amount of accrued pension rights, the value of which can be determined only by reference to the funding arrangements chosen (CJEU, judgments of 22 December 1993 - C-152/91, Neath - (...) para. 30 et seqq. and of 28 September 1994 - C-200/91, Coloroll Pension Trustees - (...) para. 76 et seqq.).

29 These decisions cannot be applied to the present provisions of the Act on Civil Servants' Pensions and Benefits on conversion of the capital amount into a pension. The reason for this is that in the aforementioned 1993 and 1994 decisions the Court of Justice of the European Union did not generally permit the use of actuarial factors but only commented on the term "pay" within the meaning of article 157 TFEU (in that regard also: Advocate General Kokott, opinion of 30 September 2010 - C-236/09, Test Achats - para. 55). Both decisions are based on the general principle that in general the same benefits have to be paid under occupational pension schemes as well. The disbursement of a capital or transfer amount that differs according to gender may only be the result of different employer contributions for the purpose of funding the system by means of capital formation (CJEU, judgment of 22 December 1993 - C-152/91, Neath - (...) para. 31 et seqq.). The present case, however, concerns pension payments of the scheme of which the employee or civil servant was last a member. Pensions must be paid without any differentiation by gender (CJEU, judgment of 28 September 1994 - C-200/91, Coloroll Pension Trustees - (...) para. 96 et seqq.).

30 The question of whether not only article 157 TFEU but also Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast, OJ L 204 p. 23) precludes the application of different mortality tables for calculating the suspension amount may be left open. Compatibility with the Directive is irrelevant if it is already possible based directly on the constitutive elements of the pay and the criteria laid down in article 157 TFEU that discrimination based on sex exists (in the same way regarding the preceding Directive 86/378/EEC: CJEU, judgments of 14 December 1993 - C-110/91, Moroni - (...) para. 24, of 28 September 1994 - C-7/93, Beune - (...) para. 64 and of 23 October 2003 - C-4/02, Schönheit - (...) para. 65). This is because provisions of the Directive cannot in any way restrict the scope of article 157 TFEU (see also with regard to the preceding Directive: CJEU, judgment of 14 December 1993 - C-110/91, Moroni - (...) para. 24).

31 bb) In calculating the relevant capital value under section 55 (1) ninth sentence BeamtVG 2010 in conjunction with the table relating to section 14 (1) fourth sentence BewG, the incompatibility of the national provisions with article 157 TFEU leads to the obligation that currently the multiplier of the capital value that applies to women must also be applied to men.

32 According to the established case-law of the Court of Justice of the European Union, the disadvantaged employees must be granted the same advantages as those which the other employees enjoy until the entry into force of measures to remedy the breach of article 157 TFEU (CJEU, judgments of 28 September 1994 - C-200/91, Coloroll Pension Trustees - (...) para. 30 et seqq., of 28 September 1994 - C -408/92, Smith - (...) para. 16 and of 7 October 2019 - C-171/18, Safeway - (...) para. 33). The national court has to apply the same provision for members of the disadvantaged group as the one that applies for the other employees, with this provision remaining the only valid system of reference until article 157 TFEU has been duly implemented in national law (CJEU, judgments of 7 February 1991 - C-184/89, Nimz - (...) para. 18, of 28 September 1994 - C-200/91, Coloroll Pension Trustees - (...) para. 31, of 28 September 1994 - C-408/92, Smith - (...) para. 16 and of 7 October 2019 - C-171/18, Safeway - (...) para. 17).

33 The precondition for such an "upward harmonisation" is the existence of a valid system of reference (concerning age discrimination: CJEU, judgments of 19 June 2014 - C-501/12 et al., Specht et al. - (...) para. 96 and of 28 January 2015 - C-417/13, Starjakob - (...) para. 47; concerning less favourable treatment due to a disability: CJEU, judgment of 9 March 2017 - C-406/15, Milkova - (...) para. 68). This precondition is not met if it is not possible within the framework of national legal provisions to identify a category of favoured civil servants (concerning ageist remuneration : CJEU, judgment of 19 June 2014 - C-501/12 et al., Specht et al. - (...) para. 96). This is not the case with regard to the present suspension provisions. A valid system of reference exists for these since female civil servants are a clearly definable category of favoured persons.

34 Insofar as the Higher Administrative Court assumed that the case-law of the Court of Justice of the European Union regarding "upward harmonisation" was developed based on cases where a smaller group of employed persons was exempt from a beneficial legal norm, the same conclusion must be reached. Nor, in the decision cited by the Higher Administrative Court in this context, does the Federal Labour Court (BAG, Bundesarbeitsgericht) draw any direct conclusion from this fact (BAG, judgment of 10 November 2011 - 6 AZR 148/09 - Rulings of the Federal Labour Court (BAGE, Entscheidungen des Bundesarbeitsgerichts) 140, 1 para. 32), but ultimately also arrives at an "upward harmonisation" for the past.

35 More recent decisions of the Court of Justice of the European Union's case-law also contain the wording, that "persons within the disadvantaged category" are granted the same advantages as those enjoyed by the "persons within the favoured category" (CJEU, judgments of 22 June 2011 - C-399/09, Landtová - (...) para. 51, of 22 January 2019 - C-193/17, Cresco Investigation - (...) para. 80 and of 7 October 2019 - C-171/18, Safeway - (...) para. 17). The Court of Justice does not make any limiting statements regarding relative sizes. It is therefore also possible to disadvantage a larger group compared to a smaller one in terms of numbers.

36 Retroactive disadvantaging of women is excluded as a means of creating a situation that is in conformity with EU law. Even though article 157 TFEU allows measures to be taken to reinstate equal treatment for the future by means of reducing advantages (CJEU, judgments of 28 September 1994 - C-28/93, van den Akker - (...) para. 19, of 28 September 1994 - C-200/91, Coloroll Pension Trustees - (...) para. 33, 36, of 28 September 1994 - C-408/92, Smith - (...) para. 21 and of 7 October 2019 - C-171/18, Safeway - (...) para. 18).

37 But equal treatment must generally not be created by a retroactive disadvantaging of the favoured group. As a general rule, the principle of legal certainty precludes a measure implementing EU law from having retroactive effect. Furthermore, article 157 TFEU is connected to the objective of the harmonisation of working conditions while maintaining improvement, which follows from the preamble of the Treaty on European Union (TEU) and article 151 (1) TFEU. Allowing those responsible for the respective pension scheme to end discrimination in breach of article 157 TFEU by a measure that creates unequal treatment by means of a retroactive disadvantaging of the favoured group is incompatible with this objective and the principle of legal certainty. This would mean that those responsible would be relieved of the obligation of eliminating discrimination immediately and in full. Furthermore, the uncertainty created pending the adoption of such measures would infringe the principle of legal certainty as regards the scope of the rights of the members. Measures taken to end discrimination in breach of EU law are therefore, as a whole, only permitted retroactively in exceptional cases if the legitimate expectations of the persons concerned are duly respected and an objective that is in the public interest actually demands this. The risk of seriously undermining the financial balance of the pension scheme concerned may constitute such an overriding reason in the public interest (CJEU, judgment of 7 October 2019 - C-171/18, Safeway - (...) para. 33 et seqq., 41, 43 with reference to judgment of 28 September 1994 - C-408/92, Smith - (...) para. 5, 13 et seq. and 17 et seq.).

38 Based on the standards under EU law, harmonisation by means of retroactive adjustment of the legal situation and then - based on this - the amendment of the suspension notices of the favoured civil servants is excluded in the present proceedings, since this is precluded, in particular, by the principle of legal certainty. The risk of seriously undermining the financial balance of the pension scheme is not apparent here. Also, contrary to the case decided by the Court of Justice, there is no information provided in the present case that the provision differentiating by gender shall be replaced by a uniform provision (see CJEU, judgment of 7 October 2019 - C-171/18, Safeway - (...) para. 29, 42). The principle of legal certainty is an even stronger argument against a retroactive effect here than in the case decided by the Court of Justice. In addition, the strict requirement of a specific enactment of a statute (Gesetzesvorbehalt) applicable under national law for provisions governing pensions and benefits of civil servants applies here.

39 cc) The initiation of proceedings to request a preliminary ruling under article 267 (1) and (3) TFEU is not necessary.

40 The national court of last instance of a Member State does not have to refer a question concerning the interpretation of EU law to the Court of Justice of the European Union, when it has established that the question is irrelevant to the decision in the main proceedings, or that the EU provision in question has already been interpreted by the Court of Justice or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt (basic decisions on article 177 TEU: CJEU, judgments of 6 October 1982 - Case 283/81, C.I.L.F.I.T. - (...) para. 21 and of 15 September 2005 - C-495/03, Intermodal Transports - (...) para. 33). Based on the case-law of the Federal Constitutional Court, a court may assume such an "acte clair" or "acte éclairé" if it has acquired sufficient knowledge concerning the substantive EU law, analysed relevant case-law of the Court of Justice of the European Union and reflected it in its decision. On this basis, when applying and interpreting the relevant substantive EU law, it has to come to the reasonable conviction that the legal situation is either clear from the outset or clarified beyond reasonable doubts in the case-law of the Court of Justice (Federal Constitutional Court (BVerfG, Bundesverfassungsgericht) judgment of 28 January 2014 - 2 BvR 1561/12 - Rulings of the Federal Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts) 135, 155 para. 184 and decision of 19 December 2017 - 2 BvR 424/17 - BVerfGE 147, 364 para. 37 et seqq.).

41 According to these standards, a referral to the Court of Justice of the European Union is not necessary since the decisions of the Court of Justice, in particular in the cases C-152/91, C-200/91, C-227/04, C-318/13 and C-171/18, provide secure case-law of the Court of Justice clarifying the legal issues that are relevant in the present case.

42 b) The divisor for converting capital amounts into pensions that is to be uniformly applied leads to an initial monthly suspension amount of EUR 299.82 (aa). Initially at least, this amount was higher than the minimum suspension amount determined by the defendant without any error of law (bb). The recovery notice is incompatible with EU law in this respect (cc).

54 The time-related calculation of the minimum suspension amount, independent of the capital amount, is constitutionally unobjectionable according to the jurisprudence of the Federal Constitutional Court. Even the initial decision of the legislature in section 160b BeamtVG, old version, and later in section 56 BeamtVG, new version, to base suspension exclusively on the duration of time not spent in German public service (and on the amount of remuneration eligible for pension) was constitutional. The German employer cannot influence the level of intergovernmental capital compensation and may assume that it depends on the amount of monthly remuneration earned during the deployment abroad. Furthermore, the time of leave of absence without remuneration, which is nevertheless credited as eligible for pension for the person concerned, is the aspect that allows the German employer to compare all persons concerned. This is because it is not about skimming off benefits received (in this case it would need to be built on the amount of the compensation) but about ensuring a level of remuneration that is adequate for the office held, taking account of the credited service period eligible for the pension including the deployment abroad and the pay level reached at the end of the career (BVerfG, decision of 23 May 2017 - 2 BvL 10/11 et al. - BVerfGE 145, 249 para. 102). The concerns of the Senate in this regard (BVerwG, judgment of 27 January 2011 - 2 C 25.09 - (...) para. 34, 37) are therefore outdated.

55 cc) The recovery notice is unlawful to a larger extent than stated in the operative part of the appeal judgment; the amounts increase by another EUR 62.85 (3 x EUR 20.95 < EUR 320.77 - EUR 299.82 >) to EUR 131.46 (EUR 62.85 + EUR 68.61) as compared to the operative part in the appeal judgment. This means that only an amount of EUR 358.88 may be lawfully reclaimed.

56 3. The challenged suspension notice is not unlawful because the defendant determined a suspension that was unlimited in time.

57 Article 33 (5) and article 3 (1) of the Basic Law (GG, Grundgesetz) in principle do not preclude a suspension provision without a time limit (BVerfG, decision of 23 May 2017 - 2 BvL 10/11 et al. - BVerfGE 145, 249). The Federal Constitutional Court has decided that section 55b (3) first sentence of the Military Pensions Act (SVG, Soldatenversorgungsgesetz) in the versions of 5 March 1987 and 18 December 1989 is compatible with the Basic Law (BVerfG, ibid.). The Senate has therefore already decided concerning these versions of the suspension provisions that it no longer adheres to its diverging statements in the judgments concerning the cases BVerwG 2 C 47.11 and 2 C 25.09 (BVerwG, decisions of 29 March 2019 - 2 B 50.18 - (...) para. 12 and of 29 August 2019 - 2 B 73.18 - (...) para. 11).

58 The fact that in the case of the claimant section 56 BeamtVG applies and later versions of the norm are concerned leads to exactly the same result. Section 56 BeamtVG corresponds to section 55b SVG in this respect and even the later versions do not contain any provision providing for the suspension to end as soon as the total suspended amount reaches the capital amount (dissenting opinion Lüneburg Higher Administrative Court (OVG, Oberverwaltungsgericht), decision of 21 May 2019 - 5 LA 236/17 - (...) para. 42 (...)).

59 Even though section 56 (6) first sentence BeamtVG 2001 stipulates that the suspended amount must not exceed the pension granted by the intergovernmental or international institution, this relates exclusively to the respective suspended amount per month in relation to the level of the capital amount converted into a pension.

60 This results from the fact that the suspended amount within the meaning of section 56 (6) first sentence BeamtVG 2001 is not the total of suspended amounts but the amount suspended in the respective month. It is clear from all the provisions of section 55b SVG 2002 and section 56 BeamtVG 2001 that they serve to calculate the suspended amounts per month. The maximum limits stated in section 56 (1) BeamtVG 2001 in conjunction with section 54 (2) BeamtVG are thus monthly values. When paying capital amounts as pensions, section 55 (1) BeamtVG 2009 allows a determination of monthly values by converting such capital amounts into pensions. These values then lead to suspended amounts on a monthly basis by means of section 56 (3) third sentence BeamtVG 2009. The fact that this also characterises the term suspended amount is already evident from section 56 (8) BeamtVG 2009, which refers to the suspended amount resulting from the application of subsections 1 to 7. What the legislature also refers to here is the amount suspended in the respective month.

61 Furthermore, the legislative materials also show that the legislature did not create section 56 (6) first sentence BeamtVG and the previous provision in section 160b (1) third sentence of the Act on Federal Civil Servants (BBG, Bundesbeamtengesetz), old version, as well as, later, section 56 (1) third sentence BeamtVG, in order to limit the suspension to the total capital amount in the case of a pension in the form of capital amounts. Section 160b (1) third sentence BBG, old version, referred exclusively to ongoing pension benefits of intergovernmental or international institutions when it was introduced by the Act of 19 July 1968 (BGBl. I p. 848). The provision limited the level of the suspended amount per month to the amount of the ongoing pension payment in the respective month. The recipients of capital amounts were not awarded this protection back then (see BVerfG, decision of 23 May 2017 - 2 BvL 10/11 et al. - BVerfGE 145, 249 para. 99). The legislature protected them by offering the option of paying the capital amount to the employer and thereby avoiding suspension (see Bundestag printed paper (BT-Drs., Bundestagsdrucksache) V/2251 p. 7).

62 With the Act Amending the Act on Civil Servants' Pensions and Benefits, the Military Pensions Act as well as other Provisions under Pension Law of 20 September 1994 (BeamtVGÄndG, Gesetz zur Änderung des Beamtenversorgungsgesetzes, des Soldatenversorgungsgesetzes sowie anderer versorgungsrechtlicher Vorschriften, BGBl. I p. 2442) the legislature extended the scope of protection for recipients of capital amounts by also referring to section 56 (1) third sentence BeamtVG in section 56 (3) first sentence BeamtVG 1994. By the conversion of capital amounts into pensions as provided for in section 56 (3) first sentence 1 BeamtVG 1994 for the first time, it had become possible to apply section 56 (1) third sentence BeamtVG, which corresponded to section 160b (1) third sentence BBG, old version, (see BT-Drs. 7/2505 p. 53), to capital amounts as well. When applying section 56 (1) third sentence BeamtVG 1994, the amount resulting from converting the capital amount into a pension had to be used as the basis according to section 56 (3) first sentence BeamtVG 1994. The level of the capital amount converted into a pension has limited the suspension amount for each individual month since then. The introduction of the limitation sought by the claimant, which goes beyond that, namely, limiting the total suspended amounts to the capital amount, cannot be derived from the law or the legislative material (BT-Drs. 12/5919).

63 Similarly, the introduction of section 56 (6) first sentence BeamtVG 1998 by the Pensions and Benefits Reform Act (Versorgungsreformgesetz) 1998 of 29 June 1998 (BGBl. I p. 1666) did not lead to the limitation the claimant had hoped for. According to the explanatory memorandum to the draft, the reason for this "shift" of section 56 (1) third sentence BeamtVG, old version, which was left unchanged apart from that, was simply the systematic combination with the new rules concerning minimum amounts that need to be left to the eligible persons (BT-Drs. 13/9527 p. 41).

64 Contrary to the view of the claimant, he is not discriminated against in an unjustified or inappropriate manner due to the missing limitation in time. As has already been shown (para. 50), the economic value of a capital amount is not determined solely by its nominal value, but also essentially by the related potential for investment or use (see also in this regard BVerfG, decision of 23 May 2017 - 2 BvL 10/11 et al. - BVerfGE 145, 249 para. 86). The legislature has always provided a civil servant or a soldier who does not see such potential for investment and/or use for himself or herself or who does not wish to take the risks associated with receipt of a capital amount, with the option from the very first version of 56 BeamtVG to pay the capital amount to the employer and to receive the full pension in return. For the period during which the pension is paid, the civil servant or soldier is tied to the option once chosen.