The claimant, born in 1962, is an Irish national and lives in the Republic of Ireland. He is recognised as a person suffering from thalidomide damage (49.60 points according to the medical points table) and has been receiving benefits under the Act on the Establishment of a Foundation "Relief Organisation for Disabled Children" of 17 December 1971 (Foundation Act) and the following Contergan Foundation Act (ContStifG, Conterganstiftungsgesetz) since October 1972. Furthermore, the claimant receives a monthly amount paid by the Irish state under the "Irish Thalidomide Compensation Scheme", which in the period relevant for this case totalled EUR 1,109 from August 2013.

After the Third Act Amending the Contergan Foundation Act of 26 June 2013 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 1847) entered into force, the claimant was entitled to a monthly Contergan pension of EUR 3,686 pursuant to section 13 of this Act. In its notice of 29 July 2013, the defendant, referring to the provision of section 15 (2) second sentence ContStifG that was introduced with the amendment of the Act, offset the monthly payment of the Irish state amounting to EUR 1,109 as of August 2013 and determined the monthly amount of the Contergan pension to be paid out totalling EUR 2,577 for the period from 1 September 2013. Pursuant to section 15 (2) second sentence ContStifG, payments from other parties, particularly from foreign states, due to taking of thalidomide-containing preparations are offset against the lump-sum compensation and the Contergan pension. The defendant rejected the claimant's objection (Widerspruch) against the aforementioned notice by objection notice of 11 October 2013.

The action brought against this with the aim of receiving a Contergan pension without offsetting the Irish payment was unsuccessful in both lower instances. By his appeal on points of law, which was granted leave to bring by the Higher Administrative Court (Oberverwaltungsgericht), the claimant continues to pursue his request.

By decision of 31 March 2021 - 5 C 2.20, the Senate suspended the proceedings and referred the question to the Federal Constitutional Court (BVerfG, Bundesverfassungsgericht) pursuant to article 100 (1) of the Basic Law (GG, Grundgesetz) for a decision as to whether section 15 (2) second sentence ContStifG is compatible with article 3 (1) and article 14 (1) GG. By decision of 21 November 2023 - 1 BvL 6/21 -, the Federal Constitutional Court established that the provision in question is compatible with the Basic Law.

5 The Senate can decide without a further oral hearing because the parties have consented to waived it (section 101 (2), sections 141, 125 (1) of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung)). The appeal on points of law is unfounded. The contested judgment is compatible with federal law (section 137 (1) no. 1 VwGO). The claimant is not entitled to a Contergan pension without reduction.

6 Pursuant to section 15 (2) second sentence of the Contergan Foundation Act (ContStifG, Conterganstiftungsgesetz) in the version of the Third Act Amending the Contergan Foundation Act of 26 June 2013 (BGBl. I p. 1847) and in the version of the Fourth Act Amending the Contergan Foundation Act of 21 February 2017 (BGBl. I p. 263) payments from other parties, particularly from foreign states, due to taking of thalidomide-containing preparations are offset against the Contergan pension. The applicability of this provision is not in question with regard to a possible breach of EU law. The breach of prohibitions of discrimination under EU law alleged by the claimant does not exist here simply because it does not fall within the scope of application of the Treaties and the implementation of EU law is not at issue (BVerfG, decision of 21 November 2023 - 1 BvL 6/21 - (...) para. 61 et seqq.; Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), referral decision of 31 March 2021 - 5 C 2.20 - (...) para. 32 et seqq.).

7 Section 15 (2) second sentence ContStifG is also not unconstitutional. As the Federal Constitutional Court establised with binding effect on the Senate and with the force of law (section 31 (1) and (2) first sentence of the Federal Constitutional Court Act (BVerfGG, Bundesverfassungsgerichtsgesetz)), the provision is compatible with the basic right to property (article 14 (1) GG) of recipients of Contergan pensions affected by the offsetting as well as with the general guarantee of the right to equality (article 3 (1) GG) (decision of 21 November 2023, 1 BvL 6/21 - (...) para. 64 et seqq.).

8 The constituent elements of the offsetting provision of section 15 (2) second sentence ContStifG are undoubtedly met (see BVerwG, referral decision of 31 March 2021 - 5 C 2.20 - (...), para. 30). As the Higher Administrative Court established in factual terms in a manner binding upon the Senate (section 137 (2) VwGO) and as is also undisputed between the parties, the claimant is, on the one hand, a person entitled to benefits within the meaning of section 12 (1) ContStifG and has hence a claim to receive a Contergan pension as determined in accordance with section 13 (1) first sentence no. 2 ContStifG and, on the other hand, a beneficiary of monthly payments from the Irish state amounting to EUR 1,109, which, within the meaning of section 15 (2) second sentence ContStifG, is a payment from a foreign state which is made due to taking of thalidomide-containing preparations.

9 If the constituent elements of the offsetting provision of section 15 (2) second sentence ContStifG are met, the legal consequence of this provision comes into effect. The Irish payment must hence be offset against the claimant's Contergan pension. This leads to a corresponding reduction of the amount paid out for the Contergan pension, whereby the calculations based on this reduction, which the defendant made in the challenged notice of 29 July 2013 in the form of its objection notice of 11 October 2013, as such, are neither in dispute nor subject to any other reservations.

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