«

»

The early bird – Challenge to adjustment of company pension must be raised in time

The Federal Labour Court (Bundesarbeitsgericht, BAG; docket number: 3 AZR 690/12) ruled on October 21, 2014 that a company pensioner must claim that the adjustment of his company pension was not correct prior to the next mandatory adjustment date (Anpassungsstichtag) against his (former) employer. Otherwise, his claims forfeit.

According to section 16 of the Company Pension Act (Betriebsrentengesetz, BetrAVG) the employer is legally obliged to review every three years whether the company pension must be adjusted and decide on the adjustment in its reasonable discretion. In this decision in particular the interests of the company pensioner and the economic situation of the employer must be taken into account.

In the case at hand the company pensioner challenged an adjustment of his company pension made by his (former) employer on July 1, 2008. Instead of claiming against the employer that the adjustment of the company pension was not correct the company pensioner filed a lawsuit with the labour court on June 28, 2011. The employer did not receive the court documents until July 6, 2011. The Federal Labour Court ruled that the company pensioner was obliged to raise the claim that the adjustment of his company pension was not correct with the employer at the latest with expiry of the day prior to the next mandatory adjustment date. Filing a lawsuit with the labour court was not sufficient since the respective court documents were provided to the employer after the mandatory adjustment date. In order to assess correctly its economic situation the employer should have known prior to the next mandatory adjustment date if and in how many cases his adjustment was challenged. The potential claim of the company pensioner forfeited since he should have informed the employer of this claim prior to July 1, 2011.