Judgment of 13 February 2020 -
BVerwG 2 C 9.19ECLI:DE:BVerwG:2020:130220U2C9.19.0


Please note that the official language of proceedings brought before the Federal Administrative Court of Germany, including its rulings, is German. This translation is based on an edited version of the original ruling. It is provided for the reader’s convenience and information only. Please note that only the German version is authoritative. Page numbers in citations have been retained from the original and may not match the pagination in the English version of the cited text. Numbers of paragraphs that have completely been omitted in the edited version will not be shown.
When citing this ruling it is recommended to indicate the court, the date of the ruling, the case number and the paragraph: BVerwG, judgment of 13 February 2020 - 2 C 9.19 - para. 16.

Old-age benefit deduction for prematurely retired professional soldiers

Headnotes

1. The deduction provided for in section 7 (1) first sentence AltGG is compatible with the Basic Law.

2. In cases relating wholly to the situation within one Member State without any indications to EU law (internal cases), questions do not arise as to the conformity with EU law of such a deduction in view of the fundamental freedom of movement for workers pursuant to article 45 TFEU. Insofar, the purely hypothetical possibility of a future exercising or impairment of the right of free movement is not sufficient.

  • Sources of law
    Treaty on the Functioning of the European Union (TFEU)article 45
    Basic LawGG, Grundgesetzarticles 3 (1), 12 (1), 14 (1), 33 (5)
    Act on Old-Age BenefitAltGG, Altersgeldgesetzsections 3, 7
    Legal Status of Military Personnel ActSG, Soldatengesetzsections 45, 46
    Social Code Book VI SGB VI, Sozialgesetzbuch VIsection 8

Summary of the facts

The claimant, who was born in 1977, claims payment of old-age benefit without deductions.

He had been a professional soldier in the defendant's service since 2002, most recently as a flight lieutenant (Hauptmann) in the air force (Luftwaffe). In 2011, he served in Afghanistan during a foreign mission of the Bundeswehr. As per 30 November 2016, the claimant was dismissed from service upon his own request. Instead of a retroactive insurance in the statutory pension insurance, he opted for the old-age benefit provided for by the Act on Old-Age Benefit.

The defendant reduced the claim - as provided for by law - by 15 per cent and informed the claimant that the claim would be stayed until the month during which he reached the regular retirement age of the statutory pension insurance.

The claimant's objection (Widerspruch), action, appeal on points of fact and law as well as his appeal on points of law against the 15 per cent deduction were unsuccessful. 

Reasons (abridged)

8 The claimant's appeal on points of law is without merit. The judgment on the appeal on points of fact and law with its underlying statements on the applicability of EU law and on the compatibility with the Basic Law (GG, Grundgesetz) does not violate federal law (section 137 (1) no. 1 of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung)). The claimant has no right to request that the defendant pay him old-age benefit at an old-age benefit rate that does not take into consideration the 15 per cent deduction provided for in section 7 (1) first sentence of the Act on Old-Age Benefit (AltGG, Altersgeldgesetz) of 28 August 2013 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 3386).

9 The Treaty provisions on the freedom of movement for workers and the measures adopted to implement this free movement (articles 45 et seqq. of the Treaty on the Functioning of the European Union (TFEU)) are not applicable to the claimant's case, as the claimant's work is not linked to any of the cases referenced by EU law, and does not comprise any relevant elements that would go beyond the borders of the Federal Republic of Germany (1.). The deduction rules provided for in section 7 (1) first sentence AltGG are compatible with national constitutional law (2.).

10 1. If the case had cross-border implications, article 45 TFEU would be applicable to the claimant's case, irrespective of the provision in article 45 (4) TFEU. The reason for this is that the objective is not to prevent access to the Bundeswehr by foreign nationals by invoking article 45 (4) TFEU. However, in the absence of any cross-border implications, the claimant cannot invoke the provision governing the freedom of movement for workers under articles 45 et seqq. TFEU. The fact that section 7 (1) first sentence AltGG also applies to cases in which article 45 TFEU is relevant due to the transfer of an employee from the federal service to the labour market of another Member State of the European Union is irrelevant for the claimant's claim, as article 45 TFEU requires cross-border implications in the specific individual case.

11 The Senate can make a declaration on the scope of application of the freedom of movement for workers under article 45 TFEU without the need to refer the matter to the Court of Justice of the European Union (CJEU, hereinafter Court of Justice) under article 267 (3) TFEU since the correct application of EU law is so obvious as to leave no scope for any reasonable doubt, and the existence of such a possibility must be assessed in the light of the specific characteristics of EU law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the European Union (CJEU, judgment of 4 October 2018 - C-416/17, European Commission/French Republic - (...) para. 110).

12 In its established case-law, the Court of Justice assumes that the freedom of movement for workers is not applicable to wholly internal cases of a Member State. EU citizenship does not have the purpose of extending the substantive scope of the Treaty to wholly internal cases that have no implications whatsoever to EU law. The purely hypothetical prospect of exercising the right of free movement does not create the necessary implications to EU law that would suffice to justify the application of provisions governing the freedom of movement. The same applies to the purely hypothetical prospect of an impairment of that right (CJEU, judgments of 1 April 2008 - C-212/06, Gouvernement de la Communauté Francaise - (...) para. 33 et seqq., of 8 November 2012 - C-40/11, Iida - (...) para. 77 and of 8 May 2013 - C-197/11 and C-203/11, Libert - (...) para. 33 et seqq.).

13 Therefore, the claimant cannot invoke the judgment by the Court of Justice of 13 July 2016 - C- 187/15, Pöpperl - (...). The reason for this is that in said judgment it is obvious that the cross-border implications in the specific individual case exist due to the retirement of the claimant in said case from service as a civil servant of the federal state of North-Rhine Westphalia and the immediately following commencement of professional work as a teacher in Austria.

14 The claimant's deployment abroad does not create the necessary implications, as the claimant participated in that deployment as a member of the Bundeswehr rather than in the labour market of another Member State of the European Union. During the oral hearing of the appeal on points of law, the claimant's counsel stated that, since the termination of his service relationship as a professional soldier, the claimant has been working in Germany - for a subsidiary of the limited liability company Deutsche Flugsicherung in Kaufbeuren.

15 2. Section 7 (1) first sentence AltGG is compatible with national constitutional law.

16 a) The deduction pursuant to section 7 (1) first sentence AltGG does not violate the requirements of the Basic Law relating to the pension for professional soldiers.

17 Even though article 14 (1) GG provides a constitutional standard, the specific design of provisions governing the remuneration and pension of soldiers nevertheless has to be aligned to the principles guaranteed by constitutional law that characterise the public-law service and loyalty relationship of professional civil service pursuant to article 33 (5) GG (see Federal Constitutional Court (BVerfG, Bundesverfassungsgericht), judgment of 26 February 1954 - 1 BvR 371/52 - Rulings of the Federal Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts) 3, 288 <335>; decision of 23 May 2017 - 2 BvL 10/11, 28/14 - BVerfGE 145, 249 para. 43 with further references).

18 The civil servant status exists with a specific employer and is, as a matter of principle, not limited in time but established for life. If the civil servant terminates this service and loyalty relationship that is intended to continue for life based on his or her own free will, the alimentation and care obligation associated with this relationship no longer applies. Instead, a claim applies that is derived from the social state principle and that is aimed at ensuring a minimum level for pensions, and that is sufficiently met through the retroactive insurance in the statutory pension insurance - section 8 (2) of the Social Code Book VI (SGB VI, Sozialgesetzbuch VI). There is no traditional principle of the professional civil service that would obligate the legislature to maintain for the civil servant who retires at his or her free will the pension claim under the law on civil servants in relation to his or her previous period of service (BVerfG, chamber decisions of 2 March 2000 - 2 BvR 951/98 - (...) para. 4 and of 28 March 2007 - 2 BvR 1304/05 - (...) para. 16).

19 Accordingly, the payment of old-age benefit to professional soldiers who retire from service upon their own request is compatible with constitutional law, as the provisions governing old-age benefit exceed in several aspects the claims which the professional soldier would receive in the event of a retroactive insurance in the statutory pension insurance - which would be sufficient under constitutional law -, for instance because the retroactive insurance would be based on the gross remuneration of active civil servants which are set at a lower level from the outset. It is the professed objective of the introduction of old-age benefits to reduce the disadvantages associated with the retroactive insurance (draft act of the Federal Government, Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 17/12479 p. 11).

20 b) The modalities of payment of the old-age benefit, insofar as they are also a consequence of the deduction pursuant to section 7 (1) first sentence AltGG, do not violate article 3 (1) GG either.

21 aa) For the application of article 3 (1) GG, it is not necessary to decide whether in the event of cross-border cases the deduction pursuant to section 7 (1) first sentence AltGG would have to be classified as a restriction of the freedom of movement for workers pursuant to article 45 TFEU and whether the - assumed - restriction of this freedom would be justified under the criteria developed by the Court of Justice (e.g. CJEU, judgment of 13 July 2016 - C-187/15, Pöpperl - (...) para. 29). The reason for this is that even if - contrary to the assumption of the Higher Administrative Court (Verwaltungsgerichtshof) - the deduction pursuant section 7 (1) first sentence AltGG were incompatible with article 45 TFEU because of effects impairing the exercising of the freedom of movement, the federal legislature would not be obligated under article 3 (1) GG to regulate wholly internal cases such as the claimant's identically to cases to which, due to the cross-border implications, the - more favourable - requirements under EU law apply.

22 According to the case-law of the Court of Justice, the fundamental freedoms only apply to cross-border cases or are linked only to circumstances which at least have consequences for the free movement of goods, persons, services and capital between the Member States of the EU, and therefore do not stand against an - indirect - "reverse discrimination" (CJEU, judgments of 7 May 1997 - C-321/94 et al., Pistre - (...) para. 41 et seqq. and of 16 January 2003 - C-14/00, Commission/Italy - (...) para. 72). The national legislature's scope for action is limited by EU law only to the extent of the scope of EU law, i.e. for cross-border cases, but not for wholly internal cases (BVerfG, chamber decision of 4 February 2010 - 1 BvR 2514/09 - Chamber Rulings of the Federal Constitutional Court (BVerfGK, Kammerentscheidungen des Bundesverfassungsgerichts) 17, 18 <23> with further references; Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), judgment of 9 April 2014 - 8 C 50.12 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 149, 265 para. 45).

23 bb) It is justified to treat employees who unilaterally terminate the service relationship that had been established for life through a request for dismissal differently to those who continue in such service relationship until they reach the regular retirement age or are prematurely retired due to permanent unfitness for duty, as only the latter comply with their obligation to devote their entire personality to the employer and to make their full work capacity available to that employer for life.

24 cc) It is true that employees - civil servants, soldiers and judges - who change to a new employer within the Federal Republic of Germany with the consent of the releasing employer also terminate the service relationship that had been established for life with the previous employer. However, the privileged treatment of this group of employees through the State Treaty of 16 December 2009 and 26 January 2010 on the Distribution of Pension Payments in the Event of Changes of Employment to Other Employers of the Federation or a Federal State (Staatsvertrag über die Verteilung von Versorgungslasten bei bund- und länderübergreifenden Dienstherrenwechseln, Act of 5 September 2010, BGBl. I p. 1288) by fictitiously assuming a uniform civil servant status is justified by the fact that the releasing employer has to consent to the change, thus being able to enforce the interests of its own personnel planning. If the previous employer refuses to consent to the change, the employee who nevertheless wishes to change only has the option of requesting dismissal from previous service, subject to the significant disadvantages of retroactive insurance in the statutory pension insurance, unless the previous employer, like the defendant, without being under a corresponding constitutional obligation, has created the option of preserving the pension entitlements, at least in part - e.g. through old-age benefit.

25 dd) The difference objected to by the claimant between the time of payment of the old-age benefit on the one hand and the granting of pension to professional soldiers under section 15 of the Military Pensions Act (SVG, Soldatenversorgungsgesetz) subject to the age limits defined in section 45 of the Legal Status of Military Personnel Act (SG, Soldatengesetz) on the other hand, is also justified.

26 Pursuant to section 3 (3) first sentence AltGG, the claim for old-age benefit is generally stayed until the end of the month during which the beneficiary of such payment reaches the regular retirement age pursuant to section 35 second sentence or section 235 (2) SGB VI. The explanatory memorandum to the draft act of the Federal Government (BT-Drs. 17/12479 p. 14) expressly stresses that this provision also applies to soldiers dismissed upon their own request. The general linking of the payment of the old-age benefit to the time when the regular retirement age is reached is a consequence of the fact that the old-age benefit paid because of the employee's dismissal request is not the same as the old-age provision of the retiring employee under the principles of the service relationship that had originally been established for life. As the old-age benefit replaces the - less favourable - retroactive insurance in the statutory pension insurance, it is objectively reasonable to use this time as a linking point. Furthermore, section 3 (2) second sentence AltGG lists cases - that actually frequently occur - where the stay of the claim for old-age benefit ends considerably earlier. The age limits under section 45 (2) SG are also intended to take into consideration the average physical and health-related burdens which soldiers in the various ranks are usually exposed to. However, a professional soldier who is dismissed upon his or her own request pursuant to section 46 SG evades these special burdens.

27 c) Also, the deduction provided for in section 7 (1) first sentence AltGG does not violate article 12 GG.

28 The old-age benefit serves, on the one hand, to increase the employees' mobility and flexibility and to promote an exchange of personnel with the economy, by reducing the economic disadvantages associated with the retroactive insurance in the statutory pension insurance through the granting of the old-age benefit. In this context, the deduction, on the other hand, serves to maintain the life-tenure principle, by counteracting the utilisation of this option in the event of a facilitation of the employee's retirement from service established for life through the significant financial disadvantages (draft act of the Federal Government, BT-Drs. 17/12479 p. 11).

29 d) Finally, there is no violation of the duty of care (Fürsorgepflicht) which, at least for civil servants, creates an obligation for the employer under article 33 (5) GG to reasonably take the best interests of the employee adequately into account (BVerfG, chamber decision of 30 January 2008 - 2 BvR 754/07 - (...)).

30 The general duty of care does not give rise to claims that go beyond a detailed legal provision (BVerwG, judgments of 26 October 2000 - 2 C 38.99 - (...), of 21 December 2000 - 2 C 39.99 - BVerwGE 112, 308 <309 et seq.> and of 2 February 2017 - 2 C 22.16 - (...) para. 22).

31 The legislature, weighing all circumstances for and against the premature retirement of employees from service established for life, has decided in favour of the specific legal provision where the function of the deduction is to counter any excessive utilisation of this option. This decision made by the legislature cannot be undermined by invoking the duty of care.