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Crediting of a fictitious statutory pension in the case of an employee who is exempt from the statutory pension insurance obligation

Federal Labour Court, Erfurt, Germany

Press Release No. 3/21

February 23, 2021

According to the hardship clause in Section 28 of the Hamburg Supplementary Pension Act (HmbZVG), the competent authority may compensate for inequities and hardships that arise in individual cases from the application of the Act. Such hardship may arise if, as a result of a change of system in the promised overall pension, the imputation of a fictitious statutory pension to an employee who is exempt from compulsory statutory pension insurance leads to inequitable results.

The parties disputed the amount of the occupational pension. The plaintiff, who was born in 1953, had been employed by the defendant as a nurse since 1 November 1973. She was exempted from compulsory insurance in the statutory pension insurance scheme at the beginning of the employment relationship. The defendant granted her a monthly allowance for a private life insurance policy. Since 1 September 2018, the plaintiff has been receiving an occupational pension under the Hamburg Supplementary Pension Act, which is calculated in accordance with the 1st Hamburg Pension Act (1. RGG) until 31 July 2003 due to the transitional provisions for pensioners not entitled to a pension (sections 31, 30 HmbZVG) and in accordance with the Hamburg Supplementary Pension Act for the period thereafter. For the calculation of the basic pension, the law distinguishes between employees close to retirement age who were born before 1 August 1948 and employees far from retirement age who were born after that date. The plaintiff belongs to the group of employees who are far from retirement. For the latter, reference is made to section 18 (2) of the Occupational Pensions Act (BetrAVG). The parties dispute the imputation of a fictitious pension from the statutory pension insurance on the basis of the approximation procedure pursuant to section 31 sub-section 2 HmbZVG in conjunction with section 18 sub-section 2 no. 1 letter f BetrAVG. The plaintiff considers it to be completely unjustified.

The Labour Court dismissed the action. The Regional Labour Court declared the crediting of a fictitious pension from the statutory pension insurance under § 31.2 HmbZVG in conjunction with § 18.2 no. 1 letter f BetrAVG inadmissible. The defendant’s appeal was partially unsuccessful in this respect. The defendant is not entitled to deduct a fictitious pension from the statutory pension insurance on the basis of an approximation procedure pursuant to § 31.2 HmbZVG in conjunction with § 18.2 no. 1 letter f BetrAVG. However, the plaintiff – in this respect the defendant’s appeal was successful – must have the subsidy amounts of the defendant for her private life insurance credited pursuant to § 26.8 of the First RGG. Until its replacement, which was the basis of the transitional provision, this provision provided – more favourably for the plaintiff – for the possibility of crediting twice the amount of the monthly allowances for a private life insurance policy with a factor of 1.25%. There is much to suggest that the plaintiff’s trust in this regulation is worthy of protection and that there are no sufficient reasons for a deterioration. In any case, an application of the hardship clause according to § 28 HmbZVG is required in the individual case. In this context, it had to be taken into account that the plaintiff could be exempted from the statutory pension insurance obligation due to her status as a Korean labour migrant in 1973. This was based on the consideration that she would return to Korea without acquiring vested rights in the statutory pension insurance. This consideration underlying the recruitment policy did not materialise.

 

Federal Labour Court, Judgement of 23 February 2021 – 3 AZR 53/20 –

Previous instance: Hamburg Regional Labour Court, Judgement of 9 January 2020 – 8 Sa 31/18 –