Federal Social Court approved pension rules from 63

Unemployment before retirement counts only in case of insolvency
The Federal Social Court (BSG) in Kassel has no constitutional reservations against the non-deductible pension from 63 onwards for particularly long-time insured persons. It is not against the principle of equality that periods of unemployment in the last two years before retirement are only exceptionally taken into account in insolvency or business tasks for pension entitlement, ruled on Thursday, August 17, 2017, the 12th BSG Senate (Az .: B 5 R 8/16 R and B 5 R 16/16 R).

The tee-off-free pension from the age of 63 was introduced at the instigation of Federal Labor Minister Andrea Nahles (SPD). The law entered into force on 1 July 2014. According to this, insured persons who have paid contributions to the statutory old-age pension insurance for at least 45 years can retire without deductions at the age of 63.

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As a rule, periods of unemployment are included in the 45 years of contributions if unemployment benefit I was granted, since the Federal Employment Agency also pays pension contributions. On the other hand, periods in which unemployment benefit II or unemployment benefit were received are not taken into account.

In the last two years before retirement, however, the law says unemployment periods are generally ignored. The legislature had limited this exception but a little. If the unemployment before retirement went back to a bankruptcy or business task, the time is still included in the 45 contribution years.

The first case decided by the BSG concerned an insured person from Lower Saxony, who was dismissed at the age of 62. The employer had justified this with an impending insolvency. Only two months after the termination, the company actually went bankrupt. The man called himself unemployed and wanted to retire after the new retirement pension came into force for very long-term insured persons at the age of 63 years.

The pension fund rejected the application. The insured had not reached the 45 years of contributions. The unemployment period shortly before retirement can not be taken into account. He had already been terminated before filing for bankruptcy, the statement of reasons. He thus lacked seven months of contributions for the tee-off-free pension.

Without success, the plaintiff pointed out that the bankruptcy had threatened and this had occurred a short time later actually.

In the second case as well, the applicant was denied the abject-free pension from age 63, since periods of unemployment were not taken into consideration shortly before retirement. Here, the plaintiff, a former car salesman of Daimler AG, had signed a cancellation agreement with his employer for health reasons and thus became unemployed.

Such a reason for unemployment must also be sufficient to be taken into account for the 45 years of contributions, according to the plaintiff. He did not volunteer, but for health reasons, the employment terminated. The fact that only periods of unemployment after insolvency or business task, but not comparable reasons are taken into account, is arbitrary and constitutes a violation of the principle of equality of the Basic Law dar. The legislature should not treat the same unequal, stressed the plaintiff represented by the social association VdK.

Before the BSG, however, both lawsuits were unsuccessful. The periods of unemployment benefits shortly before retirement could not be counted towards the required 45 years of contributions. Only in case of unemployment caused by a bankruptcy or business task is this possible.

Decisive here is the position of a bankruptcy petition. But a looming bankruptcy is not enough. Otherwise, there is a risk of abuse. Employers and employees could simulate the risk of insolvency for a tee-off-free pension.

There are no constitutional concerns against the existing rules. The principle of equality is not violated. Thus, in the second case, the plaintiff had dissolved his employment for personal reasons. This is therefore attributable to the sphere of the employee. The plaintiff announced that it would probably file a constitutional complaint against the judgment. fle / mwo