In the reporting period, several decisions of the Third Senate concerned questions of company pension schemes in connection with conversions or transfers of operations. With a resolution of February 22, 2005 (- 3 AZR 499/03 -) the Third Senate decided that the transfer of pension liabilities in the context of a demerger to form a new company is not governed by Section 613 a BGB in conjunction with Section 324 UmwG, but exclusively by conversion law if the beneficiary left the employment relationship before the division took effect. The demerger plan is crucial for the allocation of pension liabilities to the transferring or newly founded company.
The requirements for the labeling of individual items must not be exceeded. Following the Federal Court of Justice, the Third Senate assumes that it is sufficient if, after interpretation, taking into account all the circumstances, it emerges that, from a business perspective, an item is attributable to the business operations of a specific part of the company that is to be spun off. The allocation of pension liabilities to a newly founded company through a demerger plan becomes effective regardless of whether the beneficiaries and/or the pension security association agree or object to this. Neither §§ 414, 415 or 613 a paragraph. 6 BGB and § 4 BetrAVG are applicable within the framework of partial universal succession, as stipulated by conversion law. This also applies to a split to form a new company that privatizes municipal facilities. According to the established case law of the Third Senate, waiting periods that exclude claims are generally permissible in a pension plan (Section 1 b Paragraph 1 Sentence 2 and Sentence 5 BetrAVG). With a judgment of April 19, 2005 (- 3 AZR 469/04 -) the Third Senate decided that the new employer can disregard the period of employment with the previous employer as a value-forming factor when drawing up calculation rules if employees after a business transfer received a pension promise for the first time. This does not violate the protective purpose of Section 613 a BGB. If the employee of the transferring company had not acquired any pension entitlement at the time of the transfer of the company, the purchaser is generally free to decide whether and to what extent he wants to provide pension benefits. There will be no interference with the vested rights of employees who have already been taken over. It does not follow from Section 613a of the German Civil Code (BGB) that the transfer of a business creates new company pension claims for the employees taken over. This does not conflict with the fact that when applying the vesting principles of Section 1 BetrAVG, the periods of employment for the seller and the buyer must be counted together. This is because the employment relationship is not interrupted by the change in ownership. With a qualified waiting period determination, however, a prerequisite is standardized for a company pension entitlement to arise at all.
In its judgment of May 19, 2005 (- 3 AZR 649/03 -) the Third Senate decided that an employment relationship is transferred to the business purchaser if it is effectively limited to the end of the day before the business transfer and the purchaser seamlessly concludes it of a new employment relationship. The protective purpose of Section 613 a paragraph. 1 BGB requires that several employment relationships be treated as one if there is a sufficiently close connection between the two employment relationships. If an employment relationship is transferred to a business purchaser due to a business transfer, the purchaser assumes the entitlements from the company pension scheme. The seller is only liable under the conditions of § 613 a paragraph. 2 BGB next to the purchaser. This requires that the claims to company pensions become due within one year of the transfer of the business. If the transfer of business takes place as part of insolvency proceedings, the purchaser’s liability is limited to the extent that the insolvency law principle of equal satisfaction of creditors applies. Section 613a of the German Civil Code (BGB) does not apply if claims are subject to the special distribution principles of insolvency proceedings. Only to this extent can these distribution principles take precedence over the general rules regarding the transfer of the business acquirer to the rights and obligations arising from the employment relationship. Therefore, for reasons of insolvency law, the liability of the business purchaser for estate claims, i.e. claims that can be fully satisfied from the estate without any restrictions under insolvency law, is not limited. The mere possibility of insufficient assets is not a principle of insolvency law that limits the liability of the purchaser in accordance with. § 613 a BGB restricts. The Senate has left it open whether this is different if there is insufficient assets and the special distribution principles of Section 209 InsO apply.
According to a decision of the Third Senate of February 15, 2005 (- 3 AZR 298/04 -), if a pension regulation provides for a so-called ascending calculation to determine the full pension that can be achieved with company loyalty up to the point of insuredness, this does not mean that the value of a vested pension is therefore The entitlement would have to be calculated “ascending” up to the time of early termination. If the pension regulations – in this case the statutes of the federal and state pension funds – do not contain a corresponding regulation for this case, the achievable full pension must generally be determined in ascending order up to the insured event and the resulting amount must then be prorated in proportion to the amount actually achieved and up to the age limit to shorten the achievable length of employment. At the same time, the Senate confirms its previous case law, according to which the ban on taking into account the lack of employment time between early retirement and reaching the fixed age limit, with a double reduction, is limited to the amount specified in Section 2 Para. 1 BetrAVG, the case of calculating the disability pension after early retirement is not to be transferred.
The employee can request that the employer use up to four percent of his future salary entitlements of the respective contribution assessment limit in the general pension insurance for his company pension provision through salary conversion. The implementation of this claim is regulated by agreement (§ 1 a para. 1 sentence 1, 2 BetrAVG). With a resolution of July 19, 2005 (- 3 AZR 502/04 -), the Third Senate decided that an employee cannot choose the insurance provider through which direct insurance is to be carried out within the scope of deferred compensation. According to § 1 para. 1 Sentence 3 BetrAVG, pension provision must be carried out via a pension fund or pension fund if the employer is willing to do so. Otherwise, the employee can request that the employer take out direct insurance for them. In these cases, the employee does not have a legal right not only to demand that retirement provision be implemented through direct insurance, but also to choose the insurance provider. This corresponds to the will of the legislature, according to which the employer should be entitled to choose the insurance company in order to keep their administrative costs within limits. In addition, because of the more favorable insurance conditions that can be achieved in this way, it only makes sense to carry out direct insurance as a group insurance.
The Third Senate has developed a three-stage review scheme for the material review of interventions in pension entitlements. With its judgment of July 28, 2005 (- 3 AZR 14/05 -) the Senate confirmed that this scheme cannot be applied to collective agreements without consideration. Collective bargaining autonomy is part of the freedom of association through Art. 9 Para. 3 GG constitutionally protected. The parties to the collective agreement therefore have some scope for assessment and discretion when designing the content of their regulations. Collective agreements are not subject to any fairness control.
However, the collective bargaining parties are bound by the principles of protection of trust and proportionality resulting from the rule of law. The requirements to be placed on the weight of the reasons for the change depend on the disadvantages that the pension beneficiaries incur as a result of the change in the pension regulation. If the earned status of a pension entitlement is not interfered with and the interference is not serious, any objective reason is sufficient. In the case to be decided, the collective bargaining parties had, in deviation from the previously applicable regulation, decoupled the overall pensions of company pensioners and those of employees on leave for health reasons from the income development of active employees. There was an objective reason for this intervention because the collective bargaining parties agreed to oversupply.
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In its judgment of July 28, 2005 (- 3 AZR 457/04 -), the Third Senate dealt with a pension regulation which, in order to grant a widow or widower’s pension, requires that the marriage has existed for at least 10 years if it has been consummated after the deceased spouse turned 50. The Third Senate considered this late marriage clause to be effective. It does not violate the requirement of Section 75 Paragraph. 1 Sentence 2 BetrVG, employees should not be disadvantaged because they exceed certain age levels. The late marriage clause serves to limit the employer’s risk in an objectively justified manner. A promise of performance in the area of survivor’s care involves additional uncertainties and
There are risks that relate in particular to the timing of the service event and the duration of the service provision. In addition, the combination of maximum age and minimum marriage duration limits the exclusion. It is also objectively justified for the employer to waive risk limitation in the event of a long marriage. A maximum age of 50 years and a minimum marriage duration of 10 years is justifiable given the purpose of the regulation. Council Directive 2000/78/EC establishing a general framework for equal treatment in employment
and Profession of November 27, 2000, which, according to Article 1, aims to provide a general framework for combating age discrimination, does not lead to any other result. The implementation deadline for the directive has not yet expired. A violation of Article 6 para. 1 GG is not available. No undue coercion was exerted on the spouses. The employer is not obliged to promote a marriage by granting entitlements. According to § 1 b BetrAVG nF, the entitlement to company pension benefits becomes non-forfeitable if the employment relationship ends before the insured event occurs, but after the employee turns 30 and the pension commitment has existed for at least 5 years at this point. According to the version of Section 1 BetrAVG (aF), which was valid until December 31, 2000, the entitlement became vested if the employee was 35 years old when he left and either the pension commitment existed for at least 10 years or the start of the company’s service was at least 12 years ago and the The pension commitment has existed for at least 3 years. According to a ruling by the Third Senate of October 18, 2005 (- 3 AZR 506/04 -), this old regulation is compatible with higher-ranking law. It does not violate Article 3 of the Basic Law or the equal pay requirement under European law. Any unequal treatment is justified by objective factors that have nothing to do with discrimination based on gender. With the vesting provision of Section 1 Para. 1 BetrAVG aF, the legislature has restricted the contractual freedom of employers in favor of the social protection of employees. He has his design skills
leeway was not exceeded because he considered entitlements acquired long before the standard retirement age to be less worthy of protection than those acquired later. In its decision of January 18, 2005 (- 3 ABR 21/04 -), the Third Senate was concerned with a dispute between the company partners as to how the company pension claims of employees regulated in a company agreement are to be calculated before they claim the early retirement pension for the purpose of take early retirement. The Third Senate has decided that the employer is obliged to the works council to implement a works agreement as it is concluded. This claim aimed at the agreed implementation of the works agreement is a matter of works constitution law within the meaning of of § 2 a paragraph. 1 No. 1 ArbGG, in which according to Section 80 Para. 1 ArbGG the decision-making process takes place. It must be distinguished from the individual legal claims of employees established by the works agreement. The works council cannot assert these claims in its own name. Individual legal protection must not be shifted to the employer/works council relationship. Employees cannot pass on the costs of enforcing their rights to the employer by involving the works council. In the decision-making process, the company partners can not only have the effectiveness or validity of a company agreement clarified, but also its interpretation. However, the interpretation dispute must concern the content of the agreements made in the works agreement. If the works agreement does not contain any provisions and the employer enforces collective bargaining agreements or legal regulations, the works council has no right to enforce the works constitution. In the procedure decided by the Senate, those involved argued about which calculation method the basic legal evaluations of Sections 2 and 6 BetrAVG lead to. The right to implementation under works constitution law does not extend to this difference of opinion.