Domestic Case Law

1 BvL 7/18 - Immigrant from Syria vs. German Youth Welfare Authority; German Federal Constitutional Court (Bundesverfassungsgericht); decision dated February 1, 2023

Statutory regulations that limit the constitutionally anchored fundamental right to freedom of marriage are permissible only if required and permitted by the constitution and must comply with the principle of proportionality. The legislator may, therefore, only create obstacles to marriage to protect the institution of marriage following the Constitution.

Employees of state hospitals in Hamburg were granted the right in 1995 to continued employment in case of privatization of the hospitals. In 2000, the cleaning staff were spun off into a separate company which was a wholly-owned subsidiary of the state hospitals. Upon privatization in 2005, the right to continued employment was applied only to those employees employed by the state hospitals, not those employed by the wholly-owned subsidiary company.

1 BvR 1060/02 Plaintiff v. Ruling of Higher Regional Court Stuttgart 4 U 5/02 – German Federal Constitutional Court (Bundesverfassungsgericht); decision dated May 24, 2006

It is not unconstitutional to consider the aspects summarized by case law under the term "denunciation effect" when balancing the interests of freedom of speech and the protection of personal rights. However, the courts must take into account that this is possible in different forms and intensities for various circumstances.

The Court held that it was in breach of the right to equal treatment enshrined in the German constitution that periods of maternity leave (which affects women only) were not counted towards certain pension benefits whereas periods of sick leave (which affects both men and women) were. English translation of 1 BvR 1409/10 available here.)

The lower court issued an expedited injunction against the petitioner. The petitioner filed, inter alia, a constitutional complaint appealing the injunction, which prohibited him from approaching or contacting his partner and from re-entering the flat he shared with her to protect her from his domestic violence. The Court did not allow the constitutional complaint, inter alia, on the grounds that the injunction did not breach the complainant’s constitutional rights.

The 51-year-old claimant, a female employee, argued that the age limit on her employer’s pension fund discriminated against her based on, among other things, her gender, . The age limit only provided for pension claims for employees who were not older than 50 at the beginning of their employment. However, the claimant had stopped working after the birth of her child and did not return to the work force until she was 51. Her child was already 25 years old at that time and had fully completed his vocational training.

The Court held that it was unconstitutional to require an attorney without earnings to continue to make compulsory pension contributions during time taken off to care for children (up to the age of three years). The Court found that requiring such compulsory pension contributions was a breach of the right to equal treatment enshrined in the German constitution because it disproportionately affected women, who are the parent taking time off to care for small children in the vast majority of cases.

The claimant sued her employer on the grounds of discrimination after a male colleague received a promotion to a management role she had hoped for. The Court decided for the claimant, accepting statistical evidence showing that, while the majority of employees of the employer (69%) were women, no women were represented on the three most senior management levels. This was the first decision of a court accepting such statistical evidence of discrimination. This decision is now only available via subscription service.

The plaintiff exercised her right under Japanese law to reduce her working hours to spend time taking care of her child. The internal policy of her employer stated that employees who did not attend work for 90% or more of work days are ineligible for a bonus. The plaintiff’s employer counted the plaintiff’s shortened working days as absences and refused to pay her a bonus. The plaintiff sued her company for a bonus.

The plaintiff husband filed for divorce arguing that his wife was impossible to live with due to her neurosis for cleanliness. The defendant wife refused to agree to divorce because she had a seven-year-old child who needed child support. The plaintiff dated another woman and was living separately from the defendant for two years and four months before filing for divorce.