19 Ca 3152\/04<\/a>)
\nhad an employer to pay damages
\ncondemned. Also this employer
\nhad to replace his former
\nHuman Resources Manager, that is, a professional
\nat home, because of the zillmerization consequences
\ncompensate. This after
\nOpinion of the Labour Court alone
\nfor the reason that the employee
\nwas not properly explained.
\nNumerous insurers and other carriers
\nof occupational pension schemes went
\nthereupon assumes that there are sufficient
\nis to inform the employee about the “Zillmerung”.
\n…to clear it up. More than that, the judgment
\nhas often been misinterpreted to mean that
\nthe admissibility of the Zillmerization according to
\nEnlightenment downright confirmed.
\nZillmerization means that “Insurance
\nand acquisition costs, all
\nSelling and acquisition costs” with
\nthe first commuted salary instalments paid
\nwill be. Only then does a
\n“Retirement savings capital”
\non. In the present case, in
\nthe first 20 years, not even the
\nSum of the premiums paid as surrender value
\nbeen present – times completely
\nexcept for the interest.
\nFor years it has been known from the trade press,
\nthat the employer also
\ncontinues to be liable, i.e. in the case of deferred compensation
\n“pay twice” even if
\nof the employees was cleared up. Because
\nThe employer is liable for the damage regardless of fault.
\nfiduciary duty to one’s
\nEmployees.<\/p>\nLAG: Employer liable for zillmerization<\/p>\n
The Munich Regional Labor Court sentenced
\nnow in its decision of
\nMarch 15, 2007 (Case No. 4 Sa 1152106) the
\nEmployers who, after salary conversion
\nmissing about 90 percent of the
\nsalary again – this time to the person concerned.
\nemployee and not to the
\nsponsor of the occupational pension scheme – to
\npay. Legally, this deferred compensation
\nas legally invalid.
\nThe court based its ruling on
\nfour legal grounds – already one would have
\n…but it was enough.<\/p>\n
infringement
\nof equal value<\/p>\n
According to paragraph 1 II No.3 BetrAVG, the
\nEmployers are required by law to provide,
\nthat the employee has one to each
\n“equal value entitlement” is received at the time.
\nEspecially zillmerized insurance contracts
\nsatisfy this requirement
\ndon’t. Calculated costs for the risk of death
\ndo not regularly fall into the
\nWeight. Possible higher costs for occupational disability risk
\nfell in the concrete
\nCase not on. The deferred compensation thus violates
\nagainst the law
\nof equality of value, and is therefore null and void
\n(Section 134 of the German Civil Code).
\nIncidentally, this affects all
\nImplementation channels of the occupational
\nRetirement benefits: The LAG ruling puts
\nclear that the employer as a contractual partner
\nof his employee not only the
\n“simple forwarding” of the earned
\nProportionate salary within the scope of deferred compensation
\n“as a messenger.”
\nDirect insurance is therefore affected,
\npension funds, pension funds, and
\nSupport funds. For individual suppliers
\nor implementation methods
\nthere seems to be only
\nzillmerized contracts.<\/p>\n
Infringement of the prohibition of unreasonable
\nDisadvantage<\/p>\n
Conversion of remuneration with Zillmerisation
\n– and similar methods of allocating acquisition costs
\nin the early days
\nyears – disadvantaged according to paragraph 307
\nI p.1, II no.1 BGB Employee unreasonable
\nand is associated with essential basic ideas
\nof the legal regulation does not
\ncompatible. This follows the established case law
\nof the Federal Labour Court on
\n“unreasonable in good faith
\nDiscrimination” (Section 307
\nI P.1 BGB), since abusively own interests
\nof the employer at the expense of
\nemployees are affected.
\nThe employer is liable according to section
\n1 II No.3 BetrAVG by law for the fulfilment
\nof deferred compensation. The
\nThe employer is liable for the
\nAusfallhaftung, especially if
\nby offsetting acquisition costs
\nthe actuarial reserve is “substantially reduced”.
\nis. Also this disadvantage of the
\nEmployee leads to ineffectiveness
\nof deferred compensation.<\/p>\n
Infringement of portability<\/p>\n
Portability means according to section 4 BetrAVG,
\nthat the employee has not completed his or her
\nRetirement pension from the previous
\ntransfer to a new employer
\ncan. The legislature has made clear,
\nthat employees have the “current transfer value”
\ntheir company pension scheme
\nwhen changing employers
\ncan “take” with them. A portability
\nis not in fact possible, however, if
\nthe (repurchase) value through Zillmerisation
\ntends towards zero. With each new
\nEmployer would have to
\n“practically starting from scratch”.
\nFor the employer, this means a mirror image of
\nfiguratively, that the mediation of such
\noccupational pension contracts
\ncontrary to the settled case-law of the
\nFederal Court of Justice on the “investor- and
\nobject-appropriate advice” violates:
\nBecause on average, employees are 4.9
\nYears in one company – Contracts
\nwith 30 to over 40 years maturity and
\ncorrespondingly high commissions\/contract costs
\nare unsuitable for employers.<\/p>\n
Infringement of the principles of the BGH
\nand the Constitutional Court<\/p>\n
Both the Federal Constitutional Court
\n(Judgments of 26 July 2005 and 15 February
\n2006) as well as the Federal Court of Justice
\n(BGH, judgements of 12 October 2005)
\nhave decided that the Zillmerization
\nagainst the contractual objective of capital accumulation
\nviolates. Thus it cannot be agreed
\nif the surrender value
\non termination of the contract in the early years
\nis disproportionately low or even
\ntends towards zero. This applies all the more in the case of
\ndeferred compensation agreements.
\nThe judgment was delivered by lawyer Thomas
\nKeppel from the law firm of Dr. Johannes Fiala
\n…I fought for. The reasons for the judgment are in the
\nConsistency with case law of the higher courts
\nand prevailing opinion in the
\nTechnical literature. The LAG has only ruled in favour of the
\nprocess fully unsuccessful employer the
\nRight of appeal to the Federal Labour Court
\napproved.<\/p>\n
Almost all deferred compensation agreements
\naffected and ineffective<\/p>\n
The LAG Munich states in its reasons for judgment
\nthat in addition to the zillmerization
\nalso other types of acquisition cost allocation
\n– for example about the first
\nfive years – ineffective for the same reasons
\nare. This means that over 90 percent
\nto regard the conversion of remuneration as null and void
\n– workers can then
\nby their employers – also
\nearlier – demand the reversal.
\nMost employees know as a result of
\nthe non-transparency of many deferred compensation schemes
\nnot in what way the
\nAcquisition costs and whether other expenses
\ncharged for risk protection, for example
\nwere. In case of doubt the specialist lawyer
\nthe contracts are therefore initially actuarially
\n…for an expert opinion.
\nOverall, the possible recoveries
\nplus interest and arrears
\nSocial security contributions
\nto already around 65 billion euros today
\nestimated – a liability potential that
\nwill continue to increase rapidly in the future.<\/p>\n
Action option for intermediaries: in the
\ngo on the offensive<\/p>\n
The worst idea for affected intermediaries
\nsuch deferred compensation products
\nis to wait until the employer
\n…takes them into recourse. To do this, the employer must
\n…without first bringing suit…
\nof his employees and take a chance,
\nthat the intermediary himself has meanwhile
\nis insolvent, the employer then possibly
\nby back pay
\nas well as wage tax to be paid in arrears and
\nSocial security contributions as a consequence
\nalso. The employer can afford to wait
\nif found to be ineffective
\nof the deferred compensation
\n…because otherwise he’s gonna have to answer for…
\nTax evasion and non-payment
\nof social security contributions punishable
\ntherefore it is best used as a
\nThe means of self-disclosure can be used.
\nThe intermediary is therefore advised,
\nto go on the offensive. With the help of
\nLawyer, tax advisor and actuarial expert
\nExperts
\nthe sold models are on their ineffectiveness
\nand shortfalls.
\nOn statements made by product providers – for example:
\n“It’s not even zillmerizing!” – \u2013
\nhe must not rely on it. Then
\nthe intermediary to approach the product providers,
\nso that they can be
\ncontracts for damages
\nor oblige to reverse the transaction.
\nAt the moment, there is still a good chance that
\nProduct providers solely for economic reasons
\nreasons – without recognition of a
\nlegal entitlement – and no
\nLitigation with the risk of further judgments
\nrisk. Later, for example
\none or two provident funds
\nperhaps insolvent himself and the intermediary
\npays alone.
\nWith this backing, we can then start
\nemployers to develop a concept,
\nto reorganize the contracts. Possibly
\nthe intermediary can thus at least
\nescape insolvency, possibly
\nalso a part of the money received for his work
\nCommission or brokerage
\nand at best even
\ntogether with its customer a forward-looking
\nDesigning occupational pension schemes. At the fee brokerage
\nfrom contract cost-free
\nContracts will ultimately not be
\nThere’s no way around it.<\/p>\n
(versicherungsmagazin 6\/2007, 46)<\/p>\n","protected":false},"excerpt":{"rendered":"
The Regional Labor Court (Landesarbeitsgericht – LAG) Munich has ruled that the offsetting of the acquisition costs in the first years – in particular through Zillmerisation – in of the company pension scheme (bAV) with deferred compensation is inadmissible. In the grounds for its judgment the LAG Munich has stated, that now also such Agreements […]<\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"inline_featured_image":false,"footnotes":"","rank_math_focus_keyword":"","rank_math_description":"","rank_math_title":""},"categories":[544],"tags":[506,508,487,568,554,512,552,505,516,513,497,514,510,501,493,723],"class_list":["post-18591","post","type-post","status-publish","format-standard","hentry","category-presse-tv-rundfunk-en","tag-bav-en","tag-betriebliche-altersversorgung-en","tag-beratung-en","tag-entgeltumwandlung-en","tag-schadenersatz-en","tag-direct-insurance","tag-bundesgerichtshof-en","tag-insolvency","tag-life-insurance","tag-pensionskassen-en","tag-altersversorgung-en","tag-regress-en","tag-reversal","tag-support-fund","tag-versicherung-en","tag-zillmerization"],"acf":[],"_links":{"self":[{"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/posts\/18591","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/comments?post=18591"}],"version-history":[{"count":0,"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/posts\/18591\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/media?parent=18591"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/categories?post=18591"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.fiala.de\/en\/wp-json\/wp\/v2\/tags?post=18591"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}