For many enterprises the new business year 2012 already begins
on 1 October, whilst those enterprises for which the business year
commences as of 1 January are often still frequently occupied with
budget planning. For many enterprises, a cost block that should not
be neglected within the scope of the personnel costs in the new
business year as well is that of the company retirement pension. On
grounds of the introduction of unisex tariffs stipulated by the
European Court of Justice (ECJ) as per 21 December 2012 at the
latest, this can cause extra costs which should not be
On 1 March 2011 the ECJ already decided (case C-236/09) that the indefinite exemption from the unisex regulations for different premiums and benefits for insurance contracts constitutes a contravention of European law. The regulation contained in Art. 5 para. 2 of the "Unisex Directive" and the corresponding transformations into the national law of the Member States – Germany: Sec. 20 para. 2 German General Non-Discrimination Act (Allgemeines Gleichbehandlungsgesetz, "AGG") – may, according to the Luxembourg judge, no longer be applied with effect as of 21 December 2012. (Council Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services). With this, the insurance industry will have to offer gender-neutral premiums and tariffs in future.
Although no ECJ decision is available on the Directive governing equal treatment within an employment relationship (Council Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation), the decision of 1 March 2011 has direct effects on company retirement pensions. Unisex tariffs will have to be applied to the indirect implementation methods of direct insurance and pension funds as well as in cases of reinsured benevolent funds and direct pension promises which are congruently reinsured and where the content of the pension promise is oriented on the reinsurance.
Bearing in mind the qualifying date falling during the business year 2012, with the aforesaid methods of implementation benefit plans and tariffs of company retirement pensions will have to be carefully examined and the additional costs required calculated. In addition thereto, further factors to be considered are the expenditure for adjusting the benefit plans and the discussion of the corresponding changes with works council. Without a correction of previously existing, gender-specific premiums and benefits, then a risk of facing legal action will exist at the latest as of 21 December 2012. Finally, may we mention that unisex tariffs have already been applied since 2006 for the majority of pensions of the state-run pension scheme "Riesterrente", with the result that no action need be taken in this case.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.