Administrative court - Berlin "capital city allowance" is unconstitutional
The so-called capital city allowance introduced in Berlin in November 2020 for civil servants up to pay grade A 13 is unconstitutional in the opinion of the Berlin Administrative Court. The allowance of 150 euros per month is therefore in breach of the principle of distance under salary law. This was announced by the Berlin court on Monday following a corresponding decision. (VG 5 K 77/21)
Because only the Federal Constitutional Court can bindingly determine the unconstitutionality of the capital city allowance regulation, the administrative court suspended the proceedings and referred this question to the judges in Karlsruhe for a decision.
The plaintiff in the proceedings was a civil servant in a Berlin district office. He was initially a senior magistrate with pay grade A 14, then a magistrate director with A 15. He has since retired. In his complaint, he had objected to the exclusion of higher pay grades than A 13 and argued that this was in breach of the principle of equal treatment and the principle of distance under pay law.
The Administrative Court referred to the case law of the Federal Constitutional Court, according to which the principle of distance under salary law is an independent traditional principle of the civil service and therefore a constitutional requirement. The remuneration of civil servants is necessarily graded, so that, for example, civil servants in grade A 13 earn less than civil servants in grade A 14.
The requirement of distance under salary law prohibits the legislator from leveling out or significantly reducing the gap between different salary groups as a result of individual measures. The Fifth Chamber of the Administrative Court was convinced that the Berlin legislator had violated the pay gap requirement by introducing the capital city allowance.
According to the information provided, several lawsuits concerning the capital city allowance are pending in the civil service law chambers of the Berlin Administrative Court. In addition, there are a number of appeal proceedings at the Senate's internal administration, which, according to the court, have so far been suspended in view of the expected decision.
Since November 2020, Berlin has been paying the so-called capital city allowance to all municipal civil servants and employees up to and including pay grades A13/E13 per month. This affects around 124,000 state employees.
For employees covered by collective agreements, the allowance is also only granted up to a certain limit. Those affected have also taken legal action against this - so far without success. After the state labor court dismissed the complaints last April, one case is now reportedly pending before the Federal Labor Court.
Press release from the administrative court
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The Berlin Administrative Court referred the question of the constitutionality of the capital city allowance regulation to the Federal Constitutional Court due to its binding nature. This is because the principle of distance under salary law, considered a constitutional requirement by the Federal Constitutional Court, was allegedly violated by the Berlin legislator.
The plaintiff in the case, a retired civil servant, argued that the exclusion of higher pay grades than A13 breached the principles of equal treatment and distance under pay law. The Administrative Court agreed, stating that the requirement of distance under salary law prohibits significant reduction of pay gaps between different salary groups.
The Federal Constitutional Court's decision on the matter will have significant implications for the more than 124,000 state employees in Berlin who currently receive the capital city allowance. This includes employees covered by collective agreements, some of whom have already taken legal action but have not yet succeeded.
After the state labor court dismissed their complaints last April, one case is now pending before the Federal Labor Court, further emphasizing the importance of the upcoming decision from the Federal Constitutional Court.
Source: www.stern.de
