Equal value entitlement
Equal value entitlement is a term from the German company pension law (BetrAVG).
definition
The Company Pension Act (BetrAVG) defines in Section 1 (2) No. 3 the term “ deferred compensation ” in such a way that future salary components are converted into an entitlement to pension benefits of equal value .
As before, it has not been conclusively clarified whether zillmerized contracts are to be regarded as having the same value. In the case of contracts that convert the remuneration without commission and for which the amount of the contributions plus the agreed interest corresponds exactly to the value of the entitlement at all times, none of the criticisms of the Federal Labor Court listed below would apply. There is also no risk for the employer of having to make improvements.
Judgments by labor or regional labor courts
There were some judgments about zillmerized tariffs, but they turned out differently.
- A chamber of the Munich Regional Labor Court denied in its judgment of March 15, 2007 the equality of values.
- The Labor Court in Siegburg (February 27, 2008), the Labor Court in Elmshorn (August 5, 2008) and the Cologne Regional Labor Court (August 13, 2008) affirmed them.
Criteria of the Federal Labor Court
The final decision on this is incumbent on the Federal Labor Court (BAG). So far, however, the BAG has not yet had to decide on this question, but merely touched on the subject in the grounds of the judgment of September 15, 2009 (3 AZR 17/09). Should the competent pension senate of the BAG have to find a legal dispute over " zillmerized contracts", it tends to the following opinion: Zillmerization would not violate the requirement of equal value according to § 1 Abs. 2 Nr. 3 BetrAVG, because otherwise an additional requirement for the Deferred compensation will be created. However, since the legislature intends to promote deferred compensation with its additional rights for employees, this should not be too narrow. On the other hand, there is some evidence that zillmerized contracts are inappropriately disadvantaged in accordance with Section 307 of the German Civil Code (content control).
Reasons in detail:
- "Without corresponding intrinsic value, the vesting would be undermined." (Section No. 37)
- In the case of a company pension scheme , the employee is also subject to "disruptions" such as B. a termination (No. 38)
- Even the change of one's own accord, which is protected by Art. 12 GG , should not lead to a worse position (No. 38)
- The portability regulation in § 4 BetrAVG, which has been expressly improved by the legislator, is only fully effective if the transferred claim is “sufficiently valuable” (No. 39)
- The aim of deferred compensation is to “build up a particularly secure additional pension scheme”. Any loss will hinder the achievement of this goal. (No. 40)
Preliminary conclusion of the Federal Labor Court
In the case of zillmert contracts, appropriateness can most likely be achieved by spreading the regularly occurring one-off acquisition and distribution costs over five years based on Section 1 (1) No. 8 of the Pension Contract Certification Act.
A violation of Section 307 of the German Civil Code would not, however, lead to the ineffectiveness of the deferred compensation agreement, which would result in subsequent payment of remuneration, but to an increase in the entitlement to the company pension.
The employer as the undertaking is liable for the difference (AG judgment of January 17, 2005, 19 Ca 3152/04).
literature
- Wolfgang Blomeyer, Klaus Otto (greeting), continued by Christian Rolfs and Klaus Otto: Company Pension Act : Labor, Civil and Tax Law: Commentary . CH Beck, Munich 2018. 7th edition. ISBN 978-3-406-71888-5 .
- Wolfgang Förster, Theodor B. Cisch, Michael Karst (author), Peter Ahrend (start): Company pension law: Act to improve company pension schemes with civil, labor and tax regulations and pension equalization . Beck, Munich 2014. ISBN 978-3-406-66731-2 .
- Peter Hanau: Conversion of remuneration: legal basis, structure and potential in company pension schemes . 3. Edition. Schmidt, Cologne 2014. ISBN 978-3-504-42047-5 .
- Kurt Kemper, Margret Kisters-Kölkes, Claus Berenz, Brigitte Huber: BetrAVG commentary on the company pension law with insolvency protection and pension adjustment . 5th edition, Luchterhand Verlag, Cologne 2013. ISBN 978-3-472-08059-6 .