Equality: The Jurisprudence of the German Constitutional Court

5 Colum. J. Eur. L. 249 (1999)

Susanne Baer. Assistant Professor, Public Law Division, School of Law, Humboldt University, Berlin, Germany.

There is no such thing as the right to equality. Every constitutional order formed its equality provision based on its specific development: equality bears the imprint of the political, social and legal ambiance of a distinct state.


Every constitution and human rights treaty contains a clause which provides for equality. Although the formulae may vary, the central issues do not. This does not, however, make the task of assessing the current equality jurisprudence in Germany any easier. Almost every German analysis of the subject opens with two observations: first, the right to equality is the most frequently cited right in the jurisprudence of the German Constitutional Court and, second, the equality doctrine is the area of constitutional law containing the greatest number of conundrums. Although such an introduction should be enough to deter any attempt to master the challenge, I shall try to map the terrain.

I will first present three illustrative cases, each of which highlights a distinct area where the concept of equality has been found to be of great importance. The three cases relate, respectively, to the difference in the treatment of blue-collar and white-collar employees in employment-related matters, the obstacles which economically disadvantaged people face in court and the problems created by the existence of social disparities in our contract-based economy which assumes equality among all participating economic actors. Second, I will present the tools which German constitutional law uses to respond to the three issues. This part consists of a sketch of the sources, the development and the legal context of the general right to equality, followed by a description of the applicable doctrinal details, tests and levels of scrutiny. Third, I will briefly describe the Federal Constitutional Court’s actual treatment of the three cases. Finally, in the last part, I will discuss certain general features of the German equality doctrine. These are judicial review, the source of values used in equality jurisprudence and the legal theory behind equality doctrine.