The Federal Constitutional Court clarified that maximum age limits for occupational pension benefits do not violate the general principle of equality. This confirms the jurisdiction of the Federal Labor Court, according to which maximum age limits for occupational pension schemes do not constitute age discrimination or even discrimination against women.

Federal Constitutional Court, Non-acceptance order July 23, 2019 – Case 1 BvR 684/14

The complainant had initially retired from gainful employment due to the birth of her child and subsequently resumed gainful employment at the age of 51 years and four months. At the employer, employees were entitled to company pension benefits from the provident fund on the basis of a benefit plan if they had at least ten years of service and had not yet reached the age of 50 when starting employment. Years of service after the age of 60 were no longer counted. Since the complainant had reached the age of 50 when she started working, the provident fund rejected a pension claim after retirement. The labor courts had rejected the complainant's claim for provision. The Federal Labor Court based its likewise negative decision substantially on the fact that the indirect discrimination on grounds of age was justified under § 10 sentence 1 and sentence 2, sentence 3 no. 4 General Equal Treatment Act. The complainant considered the Federal Labor Court judgement a violation of the general principle of equality (Article 3(1) of the Constitution), since she suffered disadvantages due to the age limit, which were not be justified. In addition, there was indirect discrimination against women (Article 3(2), (3) sentence 1 of the Constitution) compared with persons who did not have children (Article 3(1) in conjunction with Article 6(1) of the Constitution). The typifying view of the Federal Labor Court, which presumed re-entry into working life after child-rearing periods even before the age of 50, would lack any basis.

In the relevant judgement of November 12, 2013 (Case 3 AZR 356/12), the Federal Labor Court had essentially stated that a provision providing for a maximum limit of 50 years for admission to the group of individuals benefiting from the occupational pension scheme under the benefit plan constituted direct discrimination on grounds of age within the meaning of Section 3(1) General Equal Treatment Act, but was justified in the end. Under the first and second sentences of Section 10 General Equal Treatment Act, a difference in treatment on grounds of age is permissible if it is objective, appropriate, and justified by a legitimate objective and if the means of achieving that objective are appropriate and necessary. Section 10 sentence 3 General Equal Treatment Act contains a list of facts according to which such different treatments may (in particular) be justified. Under Section 10 sentence 3 no. 4 General Equal Treatment Act, this is the case – as in the case at issue – when age limits are set for occupational social security schemes as a condition for membership or receipt of an old-age pension. The Federal Constitutional Court continued the reasoning of the Federal Labor Court. It confirmed that State provisions linking pension rights to age and a minimum length of service may infringe the provisions on equal treatment arising from Article 3 of the Constitution. The exclusion of the occupational pension scheme would apply to all employees hired after the age of 50, however – irrespective of gender. In addition, according to the Karlsruhe judges, statistics show, in the Federal Labor Court's opinion, that young mothers return to work at least for part-time work after their children have reached pre-school age and thus frequently fall below the maximum age of 50. The Federal Constitutional Court emphasized that the complainant's child had already been 25 years old when she re-entered the labor market and had already completed an education so that the specific reasons for not considering the complainant in the pension scheme were therefore more likely to be found in her own sphere. Thus, even taking into account her right to independent organization of family life, it was not apparent that the maximum age limit violated her fundamental rights.


The Federal Constitutional Court decision affirms established jurisprudence of the Federal Labor Court on age limits in occupational pension schemes. Maximum age limits can therefore continue to be provided for in benefit plans or pension schemes, taking into account employee interests. In any event, provisions stipulating a maximum age limit of 50 years are permissible; a maximum age limit of 45 years, on the other hand, is already invalid (cf. Federal Labor Court, March 18, 2014, Case 3 AZR 69/12).

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