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.
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