Munich, Germany
29. March 2022

Servus – 03/2022

The topics covered in our current newsletter are: “Significant pension increase as of 01.07.2022”, “Exit from the entry into funded pension insurance”, “Pension obligations of Dax 40 companies”, “False start for pan-European pension products” and “Case law: garnishment protection in the context of deferred compensation”.

Table of Contents

Significant increase in statutory pensions as of 01.07.2022

There is another surprise in store with regards to the regular pension increase as of the 01.07.2022. The pensions are now to be significantly higher than expected at 6.12% in the east and 5.35% in the west. As a reminder: at the beginning of November, it had initially been announced that statutory pensions could rise by 5.2% (west) and 5.9% (east) in the east as of 01.07.2022. The background to this substantial increase was the pandemic-related economic slump in 2020, which resulted in no increase in adjustments for western Germany and a marginal adjustment of 0.72% for the east. This zero round should now be offset again. However, there was considerable criticism of these plans, as the high pension increase was not only due to economic developments, but also to the suspension of the so-called catch-up factor in the pension adjustment formula during the last legislative period. This is fundamentally necessary because even if incomes fall, pensions are not reduced, and this must then be compensated for in subsequent years.

Despite the agreement in the coalition agreement between the SPD, the Greens and the FDP to reactivate the catch-up factor in good time before the pension adjustments in 2022, the positive development of contribution income, i.e. the development of incomes, now ensures that pensions will be increased significantly, even beyond what was forecast in Autumn despite the suspension of the catch-up factor. However, two significant downsides remain. First, the increase is in line with current inflation, which is of course compensated for. Second, the subsidy (financed by taxes) from the federal budget for pension insurance is rising to new heights – the draft budget provides for 107.7 billion euros.

Exit from the entry into funded pension insurance

In contrast to the significantly rising pensions of current pensioners, a reform project for the future generation of pensioners seems to have fallen by the wayside. As part of a comprehensive pension reform, the SPD, FDP and Greens had agreed in the coalition agreement to introduce partial funding of the statutory pension insurance. This was intended to stabilize the contribution rate and pension level in the pension insurance system in the long term. As a first step, it was planned to endow a publicly administered fund initially with 10 billion euros. This so-called equity pension was also intended as a response to the fact that the pay-as-you-go system of the statutory pension is coming under pressure in an aging society. The capital stock to be built up in this way was intended to tackle the problem of the baby boomer cohorts retiring in greater numbers over the next 10 years.
These reform plans will not materialize for the time being. The amount is no longer included in the federal government’s current budget. The Ministry of Finance justifies this by citing the exceptional emergency situation caused by the war in Ukraine and its effects.

Pension obligations of the Dax 40 companies

In our last newsletter, we reported on the status of the pension obligations of the Dax 40 companies. A recent study – this time by Willis Towers Watson – now provides additional insights. According to this study, despite the expansion of the Dax from 30 to 40 companies in 2021, the total volume of pension obligations increased by only 0.7% to 412 billion. The main reason for this is the 40-basis point increase in the actuarial interest rate to 1.2%, which led to a reduced recognition of obligations in the balance sheets and thus largely compensated statistically for the obligations of the 10 additional Dax companies. However, it is particularly noteworthy that despite hardly any change in the volume of obligations, pension assets increased by 12% to 298 billion euros. The funding ratio of pension obligations has thus reached a new high and is now 72% (compared with 65% in 2020).

False start for pan-European pension products

Insurance and investment products that comply with the European regulatory framework for Pan-European Pension Products (PEPP) have actually been allowed to be marketed since March 22nd. The EU had set itself the goal of creating a supplementary retirement provision by means of a “European pension”. These “Pan-European Pension Products” – PEPP for short – were intended to establish low-cost, attractive-interest alternatives to existing products, Europe-wide.
However, the regulatory framework means that so far not a single product is available on the market. Apparently, not even an approval procedure for such a product is pending with the responsible European Insurance and Occupational Pensions Authority (EIOPA). And if you ask around among potential providers, this seems to remain the case. After all, the numerous regulatory requirements, especially those relating to guarantees, inflation compensation and costs, make it seem unlikely that such a product will not represent a permanent subsidy business for the respective providers.

Case law: Garnishment Protection in the Context of a Deferred Compensation Scheme

The Federal Labor Court had to deal with the question of whether deferred compensation in favor of a direct insurance policy is subject to attachment protection, even if the agreement on deferred compensation is not concluded until a garnishment and transfer order has already been issued. The Federal Labor Court has clearly given priority to the statutory right to deferred compensation under Section 1a (1) of the German Occupational Pensions Act (Betriebsrentengesetz), behind which the creditor’s attachment interest must take a back seat (Federal Labor Court, judgment dated October 14, 2021 – 8 AZR 96/20).

In the case to be decided, the divorced husband had obtained a legally binding title for around €22,000 against his former wife and wanted to enforce this by means of partial attachment of the employment income. The former wife then demanded and received from her employer the conversion of her salary into a pension entitlement to a company pension within the statutory maximum limit. The Federal Labor Court has now clarified that there is no attachable income within the meaning of Section 850 (2) of the German Code of Civil Procedure (ZPO) if the person has made use of his or her “right under Section 1a (1) sentence 1 of the German Occupational Pensions Act (BetrAVG) to occupational pension benefits by converting remuneration and the amount provided for in Section 1a (1) sentence 1 of the German Occupational Pensions Act (BetrAVG) has not been exceeded.” However, the court left open the question of whether the situation is different if the deferred compensation exceeds the amount of 4% of the respective BBG provided for in Section 1a (1) Sentence 1 BetrAVG.