BGH Ruling of 20.10.2008 – II ZR 240/07
Calculation of Surviving Dependents Pension where the Pension of the Main Beneficiary has been Reduced
Decision:
The surviving dependents pension, which is calculated as a percentage of the pension payments of the main beneficiary, is also to be calculated from the reduced entitlement when the main beneficiary has drawn a reduced pension according to § 7 para. 3 BetrAVG.
The Case:
With its ruling of 20.10.2008 (II ZR 240/07), the Federal Court of Justice of Germany (BGH) was to decide again in a case which involved the upper limit of a pension guaranteed by the PSV (Pension Indemnification Fund body). A surviving wife had claimed for a widow’s pension of 60% of her deceased husband’s pension, which would have amounted to a monthly payment of 10,543 EUR. Due to insolvency, the husband’s pension of 17,571,82 EUR had already been reduced by a third of the relevant monthly amount at the time of the first payment according to § 18 SGB IV, to 6,871.80 EUR, as corresponding to § 7 Abs. 3 S. 1 BetrAVG.
The PSV, as the body responsible for the insolvency insurance, argued that the maximum payment according to § 7 Abs. 3 S. 1 BetrAVG should form the basis of the calculation for the widow’s pension, and not the benefits defined under the pension scheme. This means that the widow’s pension to be paid by the PSV corresponds to 60% of the amount according to § 7 Abs. 3 S. 1 BetrAVG and not 60% of the husband’s pension according to the pension scheme. The widow’s pension would therefore be calculated as 4,123 EUR per month.
History:
In its ruling of 11.10.2004 (II ZR 403/02), the BGH already had to decide which ceiling is to be used when two pension cases occur after each other, for example, when a pension is first drawn on which later claims for a widow’s / widower’s pension are made. The PSV is of the opinion that, had the pension payments to the eligible employee been restricted by § 7 Abs. 3 BetrAVG, then the surviving dependents pension would also be calculated according to the reduced amount. The BHG did not subscribe to this view.
The Ruling:
The BGH decided – as expected – in analogie to previous rulings, that the PSV, as the body responsible for insolvency insurance, was to pay a widow’s pension of 60% of her late husband’s pension according to the pension scheme, restricted, however, to the maximum sum given under § 7 Abs. 3 BetrAVG, therefore a monthly payment of 6,871.80 EUR.
According to the BGH, the fundemental point of law does not need further clarification – which is different from the case already decided – as the main beneficiary had already drawn on the reduced pension according to § 7 Abs. 3 BetrAVG, and the default case had not only become valid for the widow. The maximum sum according to § 7 Abs. 3 BetrAVG refers to the widow’s pension itself and not her late husband’s pension, from which the widow’s pension would be calculated.
The claim for pension entitlement of a surviving dependent is to be decided according to the pension commitments of the employer and not according to the maximum sum established under § 7 Abs. 3 BetrAVG.
The appeal procedings were settled by the withdrawal of the appeal.
09.01.2008