General legal framework

• Author: Matthias Mahlmann
• Pages: 17-17

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1 GENERAL LEGAL FRAMEWORK

Constitutional provisions on protection against discrimination and the promotion

of equality

The constitution of Germany, the Basic Law ( GG), includes the following articl es dealing

with non-discrimination: Article 3 GG, guarantee of equality; Article 33(3) GG, equal access

to office, being the most important in practice.50

The guarantee of equality51 provides, first, for equality before the law,52 which has been

interpreted by the German Federal Constitutional Court ( Bundesverfassungsgericht)

(BVerfG) as going beyond the equal application of law and as giving the right to the creation

of law that respects the principle of equality in treating essentially equal things equally and

essentially unequal things unequally.53 This open-ended equality guarantee may cover

other grounds as well. The Federal Constitutional Court regards sexual orientation and

identity as part of the huma n personality as protected by the guarantee of human dignity

and the general right to personality.54 The guarantee of equality contains, secondly, special

protection against discrimination on the grounds of sex,55 parentage, race, language,

homeland and origin, faith, or religious or political opinions.56 There is a prohibition against

disadvantaging somebody because of their disability, which implies the admissibility of

positive action.57 The same applies to sex. It is explicitly stated that the state should

support the effective realisation of the principle of equality for women and men and work

towards abolishing current inequalities.58 Article 33(3) GG guarantees equal access to office

irrespective of religion or belief.

These provisions apply to all areas covered by the directives. Their material scope is

broader than those of the directives.

The provisions are directly applicable.

These provisions cannot be enforced against private individuals (although they can be

enforced against the state).

However, fundamental rights have an indirect horizontal effect (mittelbare Drittwirkun g)

through the interpretation of open-textured provisions in private law, most importantly the

general provisions on bona fide and equity.59 In addition, the doctrine of positive duties

can give rise to the obligation of state authorities to protect against discriminat ion.

50 There are other provisions relevant for non-discrimination, e.g. Article 6(5) GG (children born out of

marriage) or Article 38 GG (voting rights) that are not discussed here.

51 Article 3 GG.

52 Article 3(1) GG: ‘All humans are equal before the law.’

53 Settled case law, Decisions of the Federal Constitutional Court (Entscheidungen des

Bundesverfassungsgerichts) (BVerfGE) 49, 148 (165); 98, 365 (385).

54 Settled case law, see BVerfGE 49, 286; 96, 56; 115, 1. The right includes finding and cognition of the

identity, BVerfGE 49, 286; 96, 56; 115, 1. The right to a name according to sexual identity is encompassed

by this right, including for homosexual transsexuals, BVerfGE 49, 286; 96, 56; 115, 1.

55 Article 3(3) and Article 3(2) GG: men and women are equal.

56 Article 3(3) (first sentence) GG. The prohibition of discrimination on the ground of parentage prohibits any

discrimination based on characteristics of the parents. Whether this includes for instance the sexual

orientation of parents has not been clarified by case law.

57 Article 3(3) (second sentence) GG.

58 Article 3(2) (second sentence) GG.

59 Federal Constitutional Court, 1 BvR 400/51, 15 January 1958,

ECLI:DE:BVerfG:1951:rs19580115.1bvr040051: BVerfGE 7, 198, settled case law. A possible exception to

this rule is Article 1 GG.