– When the employer alone is liable for the equal value of deferred compensation? –
2022 the value equality of the direct insurance (DV) ends
In the future, it will be highly questionable whether the sum of the contributions paid in or converted will be “equal in value” at the end of the savings period – the deferral period – in the case of deferred compensation in the company pension scheme (BAG, judgment dated May 12, 2020, Case No. 3 AZR 157/19). Finally, only 80% of the converted compensation will be guaranteed on a regular basis starting in 2022.
Currently, more than this is made almost impossible by the lowering of the maximum actuarial interest rate from 2022 from 0.9% to 0.25% %, i.e. the former at least nominal value preservation, with real costs (including commission/accrual). Or so close that almost no more risk can be taken on the stock market by the insurer, leaving it at around 0.25% interest before and zero after costs with great certainty – i.e. the proverbial piggy bank.
An insurance consultant reported this year that 33 of 81 life insurers did not generate sufficient returns in the previous year to meet contractually promised guarantees alone. For many years now, increasing provisions have had to be made in the balance sheet to cover rising deficits.
Company pension scheme as a protected property right of employees?
Even for those occupational pension benefits that only become available at the end of the deferral period, employees have regularly performed work. This lump-sum payment or pension benefit must, in accordance with the statutory provisions, represent an “expectancy of equal value”, § 1 II No.3. BetrAVG. For this, on the one hand, the converted salary components must be used in full for contribution payments – for example, into a DP; and on the other hand, there must be an appropriate preservation of value, such as that the sum of the contributions paid in is available at the end.
Insurers reassure – employers and intermediaries pile up liability risks
Brokers are recommended market-wide to document exactly their consultation opposite the employer (AG), so that they are not liable themselves, but only the AG at the end alone for the replenishment on value equality, because all planning had to be known to him long ago. “There is no need to act so surprised. If you don’t mind your own business, it’s really your problem!” And as Prostetnik Vogon Yeltz goes on to say, “Lame fucking planet this is – I don’t have the slightest sympathy!”.
As the AG, one could also think of obtaining a release from liability from the insurer for the equal value; including assumption of any later costs of legal defence. After all, the insurer considers what it makes to be of equal value, and wants to sell it, not be stuck with it as unsaleable. If the insurer does not want to be liable for equal value, this should give pause for thought.
Some risk-averse employers have already decided in the past to terminate the deferred compensation agreement and to reverse the occupational pension scheme. After that, employees are free to decide where and how to invest their savings for retirement. Net after taxes and social law effects, this often pays off better anyway.
Finally, employers not only have a duty to pay but also run the risk that the deferred compensation may be judged to be invalid long before the start of the pension, e.g. at the end of the employment relationship, because only a fraction of the contributions paid in is still available (LAG München, judgement of 15 March 2007, file no. 4 Sa 1152/06). Illustrative is the case in which a pension fund reduces its benefits in accordance with its statutes, and from then on the employer is allowed to step in for the difference (BGG, judgement of 19.06.2021, Az.3 AZR 408/10).
Employer obligation to convert remuneration tends towards unconstitutionality
If there is no longer a DV of equal value for lack of sufficient interest with a capital guarantee, then the law’s requirement that the AG provide one on demand also becomes unconstitutional. This is because the Federal Labor Court (BAG) has only judged it to be constitutional because the AG can choose a suitable DP – but only if it really exists in this way.
Some employers could now come up with the idea of again questioning the legal requirement for mandatory DP, § 1a BetrAVG. Because he does not bear only a minimal and thus reasonable risk, as the BAG (judgement of 12.06.2007, Az.3 AZR 14/06) meant at that time, but this almost certainly occurs. Especially when insurers do not want to be liable for their assessment.
However, mediators should be careful not to trivialize this situation – it is not enough to point out to the person who is about to jump out of the plane without a parachute a possible risk of damage to health after a nice flight, if the probability is 2 to the power of 260199 to 1.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
by courtesy of
(published in Infinity Magazine 07/2022, pages 30-31 under the headline: In the future, not even the contributions of the direct insurance are guaranteed at the start of the pension)
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About the author
PhD, MBA, MM
Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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