Aktuelle arbeitsrechtliche Rechtsprechung zur bAV


Current employment law case law concerning the occupational pension scheme

1. Revocation of a pension commitment (Federal Supreme Court, ruling of July 2, 2019, II ZR 252/16

In its ruling of 2 July 2019, the Federal Supreme Court (BGH) further specified the requirements for the revocation of a pension promise made to a managing director.

In 1999, the defendant company had granted the pension commitment to the plaintiff shareholder-managing director, who at that time was the majority shareholder with a 98% share in the company. The plaintiff received pension benefits from the pension commitment for the first time in 2011. In June 2013, the plaintiff sold 51% of the shares to a third party, E. From August 2013, there were disputes between the plaintiff and E, which ended in a lasting dispute. As a result, on 23 August 2013, the plaintiff, in his function as managing director of the defendant, pledged various assets of the defendant totaling approximately EUR 1.3 million, which the defendant had deposited in a bank account to cover the pension commitment, in his favour. After the pension payment for September 2013 had failed to materialise, the plaintiff informed the defendant on September 23, 2013 that he was exercising his right to a lump-sum settlement, which was disputed by the defendant, and arranged for the transfer of the pledged assets to his private bank account. The defendant then claimed restitution from the plaintiff in a lawsuit that the plaintiff subsequently paid. On September 20, 2013, the shareholders' meeting of the defendant adopted the resolution forced by E to relocate its registered office with effect from October 1, 2013. The plaintiff did not recognize this resolution and also - in the opinion of E arbitrarily - acted as managing director at the defendant's previous registered office from October 1, 2013. In a circular dated October 1, 2013, the plaintiff addressed customers of the defendant and informed them that he would in future only be reachable as managing director under a mobile phone number listed in the aforementioned letter. The mobile telephone number led to D-GmbH, which the plaintiff had previously founded and which was active in the same business field as the defendant. Subsequently, many of the defendant's customers switched to D-GmbH. At a shareholders' meeting on November 28, 2013, E passed a resolution to revoke the pension commitment, among other things. The defendant subsequently discontinued its business operations, according to its own assertion due to the customer switch to D-GmbH initiated by the plaintiff.

The plaintiff filed a rescissory action against the revocation of the pension promise. He stated in the legal dispute that the defendant had discontinued its business operations - irrespective of the customer change - due to the incompetence of its other managing director appointed by E. The Court of Appeal dismissed the action on the grounds that the pension promise had been effectively revoked. It based the revocation essentially on the plaintiff's breaches of duty assumed by it in not complying with the resolution of the shareholders' meeting on the change of seat and on addressing the defendant's customers to switch to D-GmbH. It left open in the result whether the customer change forced by the plaintiff was causal for the business attitude.

The BGH granted the plaintiff's appeal.

To justify its decision, the BGH first confirmed the guiding principles of its restrictive case-law, according to which the revocation of a pension promise made to a managing director is only effective if the assertion of benefits from the BAV promise is in breach of the law, i.e. if the pension beneficiary has violated his obligations under the managing director employment contract in such a gross manner that the proven loyalty to the company subsequently turned out to be worthless. This may be due, among other things, to conduct which puts the company in a situation threatening its existence or which causes it high losses.

In the present decision, the BGH emphasises that the concrete breach of duty must be the cause, i.e. the causal factor, of the threat to the existence of the company. The burden of proof for the causality lies with the company as the pension debtor. In the present legal dispute, the court was already unable to recognize both the existence-threatening situation of the company and such a causality for the breaches of duty accused of the plaintiff and referred the legal dispute back to the court of appeal for further clarification of the facts of the case.


The decision of the BGH once again sensitises the practice to the restrictive requirements of case law for the effective revocation of pension commitments to managing directors or other statutory representatives of a company. Companies intending to revoke a pension commitment must, above all, carefully work out the causality of the breach of duty in question for the situation endangering the existence of the company and provide evidence that can be relied upon. In addition, the decision indicates that the revocation in the concrete case requires an actual situation of the company endangering its existence.

2. Confirmation of the maximum age limit of 50 years in BAV commitments by the Federal Constitutional Court (BVerfG Resolution of 23.7.2019, 1 BvR 684/14)

In its decision of July 23, 2019, the Federal Constitutional Court (BVerfG) recognised the effectiveness of an age limit of 50 years in BAV commitments and thus confirmed the relevant case-law of the Federal Labour Court (BAG, specifically in the judgment of 12 November 2013, 3 AZR 356/12 relevant to this decision).

The resolution was based on a pension commitment which linked the granting of old-age pension benefits to at least a ten-year qualifying service period (waiting period) and thus provided for a maximum age limit of 50 years as a condition for acceptance into the group of persons benefiting from the pension commitment. The employee suing for benefits under the pension plan had already reached the age of 52 at the time she took up her employment. She based her action on the consideration that the maximum age limit violated the statutory prohibition of discrimination on the grounds of age or gender in § 1 of the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz - AGG) and was invalid pursuant to § 7 (2) AGG.

The BVerfG did not accept the constitutional complaint. In its statement of grounds, it concurred with the BAG's considerations according to which a maximum age limit would indeed result in less favourable treatment of persons who had already exceeded the age limit at the time of commencement of the employment relationship. However, the unequal treatment in relation to younger employees was justified in the sense of § 10 AGG, because on the one hand the employer could assert the legitimate interest of protection against overburdening from BAV commitments - in particular from the settlement of small (est-) entitlements - and on the other hand employees had sufficient time with other employers before they reached the age of 50 to earn company pension entitlements or otherwise provide for their old-age pension.


In practice, the legally secure design of maximum age limits could in fact already be derived from the BAG ruling of November 12, 2013. The clarifying decision of the BVerfG can be regarded as the final conclusion of the relevant discussion. At the same time, it shows the practical possibilities for a demand-oriented control of the employer's interest in overload protection from pension commitments through the use of age clauses. The decision on maximum age limits increases legal certainty. It confirms that maximum age limits are a suitable means of structuring the system - as are the age distance clauses already considered by the BAG to be legally effective, with a proportional reduction in survivors' benefits (judgment of the Federal Court of Justice of Germany, p. 1). 11.12.2018, 3 AZR 400/17; for this see the overview of court rulings in DPEsche 01/2019) and clauses on late marriages, which only entitle an employee to survivor benefits for his spouse in the event that the marriage is concluded before the employee reaches the age of 62 if the age of 62 represents the fixed age limit of the pension scheme.

3. Effective exclusion of employees from claims arising from a pension commitment in the implementation path of the provident fund (Unterstützungskasse) in the event of breach of cooperation obligations (BAG Urt. v. 22.1.2019, 3 AZR 9/18).

In its resolution of 22 January 2019, the Federal Labor Court (BAG) deemed an exclusion of employees from claims arising from a pension commitment in the implementation path of the provident fund to be effective in the event of a breach of obligations to cooperate if the specific obligations to cooperate and the legal consequence of the exclusion of claims resulting from their disregard are explicitly regulated in the legal basis of the pension fund commitment (in the specific case: a shop agreement) and the employee understands that the provident fund only fulfils the pension benefits if the specific obligation to cooperate is fulfilled.

In the facts relevant to the decision, the benefit plan of the occupational pension scheme commitment - financed by deferred compensation - provided for two benefit options for the granting of a disability benefit by the provident fund: a basic option with disability benefits amounting to 100% of the retirement pension benefits (A1) also provided for in the benefit plan and an increased benefit option (A6) with disability benefits amounting to 500% of the retirement pension benefits. The provident fund financed the pension benefits through congruent reinsurance. The benefit plan linked the granting of survivor benefits under option A6 to answering the insurer's health questions and subjecting them to any necessary medical examination. Employees who did not fulfil these cooperation obligations or for whom the insurer refused to take out reinsurance for option A6 on health grounds received (only) survivor benefits under option A1 under the benefit plan. The plaintiff chose option A6 and subsequently left the questions submitted by the reinsurance company to answer his health questions unanswered. The provident fund initially confirmed the selected option A6 and also issued a corresponding benefit certificate with disability benefits in accordance with option A6. It corrected this already in the following year of the further term of the employment relationship and reported benefits under option A1 in the subsequent benefit certificate. It granted the plaintiff disability benefits under Option A1 after the onset of his occupational disability. The plaintiff sought benefits under Option A6 in his lawsuit.

The BAG dismissed the action. As justification, it stated that the benefit plan of a provident fund, as part of the legal basis of the pension fund commitment, could effectively provide for the employee's obligations to cooperate in the matter of the dispute - in particular in the case of congruent reinsurance of the pension obligations through a reinsurance policy. In view of the importance of the knowledge of the reinsurer of the health status required for the funding, an employee could not assume that he could receive the specific survivor benefits even without answering the health questions. For this reason, in the present case, even the proof of benefit issued in the meantime by the provident fund with option A6 cannot have any legal binding effect.


Modern pension commitments in the external implementation path of a provident fund often provide employees with options for the individual pension benefits; this also applies in particular if the pension benefits are financed by the employee through deferred compensation. With its decision, the Federal Labor Court confirms the legal practice of such pension commitments with a congruent reinsurance policy, which link the granting of higher pension benefits according to individual optional tariffs to the employee's participation in clarifying his health status.

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