– When the employer alone is liable for the equal value of deferred compensation? –
2022 the value equality of the direct insurance (DV) ends
In future, it will be very questionable whether, at the end of the savings period – the deferral period, in the case of deferred compensation in the company pension scheme (bAV), the sum of the paid-in
or converted contributions will be “equal in value” (BAG, judgment of 12.05.2020, ref. 3 AZR 157/19). Finally, from 2022 onwards, only 80 % of the converted
remuneration must be guaranteed.
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 about 0.25% interest before and
Zero after costs with great certainty remains – that is, the proverbial nest egg.
One insurance consultant reported this year that 33 out of 81 life insurers did not generate sufficient returns in the previous year to cover the contractually promised
Guarantees to be fulfilled. 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.
To this end, on the one hand the converted salary components must be used in full for contribution payments – e.g. 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 are 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’s no need to act so surprised. If you don’t mind your own business, it’s really your problem!”
And as Prostetnik Vogon Yeltz further opines:
“Lame fucking planet this is – I don’t have the slightest sympathy!”.
In principle, the employer has the obligation to indemnify (§ 1 I S.3 BetrAVG) – the intermediary’s liability as an adviser (§§ 241, 280 BGB).
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. For the Federal Labour Court (BAG) has only judged it to be constitutional because the AG can choose a suitable DP – but only if this is
really exists.
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
www.submission.de (published in SubmissionsAnzeiger, issue 230 of 25.11.2021, page 32 u. 33)
and
www.experten.de (published in ExpertenReport on 24.11.2021 under the headline: Even with direct insurance, no more guaranteed contributions at the start of the pension)
Link: https://www.experten.de/2021/11/beitraege-direktversicherung-nicht-garantiert
and
www.adeba.de (published 28.11.2021)
Link: https://magazin.adeba.de/rentenbeginn-beitrage-direktversicherung-garantiert/
and
www.gt-worldwide.com (published 11/22/2021)
and
www.nd-aktuell.de (published Dec. 14, 2021, under the heading: When is the Employer Solely Liable for Equal Value).
Link: www.nd-aktuell.de/artikel/1159569.wann-haftet-der-arbeitgeber-allein-fuer-die-wertgleichheit.html
and
www.guetsel.de (veröffentlicht am 20.06.2022)
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About the author
Dr. Johannes FialaPhD, 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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