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April 17, 2019

How Employers Can Stay on the Safe Side: Scrutinizing the Corporate Provision for Surviving Dependents

Deutscher AnwaltSpiegel 8/2019, page 12

In her article, Frankfurt office-based employment lawyer Nina Marcus comments on two recent [German] Federal Labor Court decisions regarding survivors' pensions:

  • Decision of 11 December 2018 (file no. 3 AZR 400/17): In this case, a widow invoked Section 7 para. 2AGG to bring an action against the reduction of her pension because of an age difference clause. While the lower courts decided inconsistently, the Federal Labor Court considered the disputed age difference clause to be legitimate, since it was only linked to the age difference between the spouses, rather than to the specific age of the plaintiff. However, the recognizing Senate questioned whether exercising this clause would end up creating an unintended discrimination on the basis of sex (as opposed to age) since several widows who had been considerably younger than their deceased husbands possibly could be affected by this regulation. That question, however, was not up for ruling.
  • Decision of 19 February 2019 (file no. 3 AZR 150/18): The Federal Labor Court invalidated a clause contained in many pension commitments relating to a minimum duration for a marriage. The court found that this time-length restriction deviated significantly from the type of contract characterizing the survivor's pension and thus did not stand up to the adequacy check under Section 307 para. 1 sentence 1 of the German Civil Code (BGB).

» Read the article (available only in German).