Monthly Dose of Germany: November 2023

Death benefits in company pension schemes Company pension schemes according to Sec. 1 (1) s. 1 BetrAVG?!

Death benefits have a long tradition in company pension practice. They have their origins in public services: They were initially conceived in a decentralised manner as an industry and/or insurance product-related death benefit by funds and insurance companies. Later, the (social) legislator also took them on board and, until 2003, defined them as a statutory health insurance subsidy towards funeral costs (Sections 58f. SGB V old version) and continues to define them in the civil servants' pension scheme as a death grant for the care of surviving dependants in accordance with Section 18 BVG. In company practice, death benefits in employment relationships - particularly for managers and specialists - continue to include a possible and, in individual cases, material remuneration component.

The article addresses:

• Content design of death benefits in company practice: typifying inventory
• Death benefit as a company pension scheme within the meaning of Section 1 (1) s. 1 BetrAVG
• Conclusion and outlook

The legal implications of Generative AI Considerations for intellectual property, data protection, contracts for corporations and Generative AI policy

From a legal perspective, the increasing use of Generative AI raises a variety of considerations regarding intellectual property, data protection, contracts for corporations and AI strategy. In this article, we explain the common legal issues in the field of Generative AI.

The article covers these topics, among others:

• The current enthusiasm for AI adoption is being fueled in part by the advent of Generative AI
• Intellectual property
• Personal data and confidentiality
• Data protection principles
• Confidentiality
• Measures to consider adopting
• Contractual terms
• The path ahead with Generative AI

Company pension law – Case Law update 2/2023

Our Autumn 2023 Client Alert on current case law deals covers, inter alia, the judgements (1) of the German Federal Labour Court (Bundesarbeitsgericht, BAG) of 20 June 2023 (3 AZR 231/22) on the requirements for the validity of a (partial) conversion of a pension commitment from exclusively monthly pension benefits to capital payments, which requires independent justification even if the pension benefits are subsequently equivalent or higher, (2) of the BAG of 14 March 2023 (3 AZR 197/22) on the continuation of its case law on the employers’ obligation to assume liability in the event of a reduction in pension benefits by the pension fund, and (3) of the LAG Niedersachsen of 20 April 2023 (3 Sa 86/22 B) on the continuation of BAG’s case law on the employers’ obligation to assume liability in the event of a reduction in pension benefits by the pension fund, even if it is not possible to implement the company pension scheme via the pension provider specified in the collective agreement referred to (VBL).

The article covers these topics, among others:

• (Partial) conversion of a pension commitment from exclusively current benefits to lump-sum benefits requires independent justification even if the pension benefits are subsequently equivalent or higher (BAG judgement of 20 June 2023, 3 AZR 231/22)
• Employer's obligation to assume liability if pension benefits are reduced by the pension fund (BAG judgement of 14 March 2023, 3 AZR 197/22)
• Admissibility of an action for future benefits under a company pension scheme, even with regard to undisputed claims, if (only) part of the claims are in dispute (BAG judgement of 14 March 2023, 3 AZR 175/22)
• Employee’s entitlement to the provision of a company pension on the basis of a reference clause in a collective agreement in the employment contract - even if it is not possible to implement the company pension commitment via the pension provider specified in the collective agreement referred to (VBL) (LAG Niedersachsen judgement of 20 April 2023, 3 Sa 86/22 B)

Upper house of parliament does not approve draft business tax reform bill

Bill is forwarded to conference committee of the upper and lower houses of parliament to find a compromise

On 24 November 2023, the upper house of the German parliament withheld its approval to the business tax reform bill (“Growth Opportunity Act”) that was approved by the lower house of parliament on 17 November 2023 (see GTLN dated 11/22/23) and forwarded the tax reform bill to the conference committee of the upper and lower houses of parliament for further consideration and to find a compromise. The pending tax reform bill includes a multitude of tax measures covering tax incentives, corporate income tax, individual income tax, and other tax law provisions. Key measures contained in the bill are the introduction of a climate investment grant and changes to the net operating loss (NOL) carryback period, the minimum taxation rules for the use of NOL carryforwards, and the interest deduction limitation rules.

"Monthly Dose" Employment Law: November 2023

Current case law in employment law

The November 2023 edition of our Monthly Dose Employment Law on current case law summarizes the following judgments:

1. Works council chairman cannot be appointed as data protection officer (BAG judgement of 06.06.2023, 9 AZR 383/19)
2. Burden of presentation and proof for the existence of an employment relationship as a result of concealed employee leasing (BAG judgement of 25.07.2023, 9 AZR 278/22)
3. Forfeiture of a claim to correction of an employment reference (LAG Baden-Württemberg, judgement of 31.05.2023, 4 Sa 54/22)
4. Part time submission and working time allocation instructions - general exemption from early and late shifts and Saturday work due to childcare (LAG Mecklenburg-Vorpommern judgement of 13.07.2023, 5 Sa 139/22)
5. No GDPR claim for damages under Art. 82 GDPR in the event of a mere inconsequential breach of the provisions of the GDPR (ECJ judgement of 04.05.2023, C-300/21, Österreichische Post)

Transaction News

We at Deloitte Legal Germany are constantly advising on numerous complex transactions and challenging projects.

We would be delighted to explain our services portfolio to you and discuss with you how we at Deloitte Legal Germany can assist you with your projects, whether in the field of Corporate Reorganizations, M&A transactions, including carve-outs, general commercial, employment law, IT/IP or LMC/LMS. Just reach out to us!

In order for you to better understand how we have helped other clients, we would like to hereinafter showcase information on a project that our teams have recently advised on.

Deloitte Legal advises niiio finance group AG on planned investment by Pollen Street Capital 
A Deloitte Legal team led by Christoph Meves and Partner Niko Jakovou has advised niiio finance group AG, a public company listed on the open market, in connection with the planned investment by London-based private equity investor Pollen Street Capital.

Read more

Deloitte Legal Webcast Series

In our German language Deloitte Legal Update webcast series, we address current legal issues and developments that are important for corporate practice.

In our upcoming "Legal Update" webcast we will discuss:

Legal Update Webcast #18/2023 - Get ready for 2024

As the new year approaches, it is time to address the changes it will bring. Numerous legislative updates and new laws are presenting companies with new challenges. Some of the amendments are already in effect, while others are due to come into force at the turn of the year.

Dr. Julia Petersen, Bettina Mertgen, Dr. Hendrik Breimann (Tax) and Anna Reshetina-Korkhova will present a selection of important new regulations and provide an overview of the key new obligations that companies and their decisionmakers will have to prepare for.

Wednesday, 13 December 2023 | 11:00 - 12:00 a.m. 

Register here (Webcast in German language)

You can download the presentation of our recent webcast here:

• Sound Compensation Update 2023: Employment law and regulatory update for remuneration systems of institutes  here (in English language). Dr Lars Hinrichs and Carsten Auel gave an update on employment law and regulatory aspects for remuneration systems of institutes.
• Trademark Law Insight - Practical Aspects of the right-preserving trademark use here (in English language).  Sonja Baier and Sebastian von Rüden discussed the quewstions, why the correct use of trademarks and their proof of use are important and why already the faulty proof of the actual use alone can lead to trademark cancellation.

In our Webcast Archive, you can find a list of previous webcasts and also download the corresponding presentations.

Should you be interested in topics discussed during one of our German language webcasts, do not hesitate to contact the respective presenters – they will be delighted to provide you with additional information in the English language.