Unemployment before retirement only counts in the event of bankruptcy
The Federal Social Court (BSG) in Kassel has no constitutional concerns against the discount-free pension from 63 for particularly long-term insured persons. It is not against the principle of equality that unemployment periods in the last two years before the start of the pension are only exceptionally taken into account for insolvency or business abandonment, the 12th BSG Senate (Az .: B 5 R 8/16 R and B 5 R 16/16 R).
The discount-free pension from the age of 63 was introduced on the initiative of Federal Minister of Labor Andrea Nahles (SPD). The law entered into force on July 1, 2014. According to this, insured persons who have paid contributions to the statutory pension insurance for at least 45 years can retire at 63 years of age without discounts.
In principle, periods of unemployment also count towards the 45 years of contributions if unemployment benefit I was granted, since the Federal Employment Agency also pays pension contributions. However, periods in which unemployment benefit II or unemployment benefit was received are not taken into account.
According to the law, unemployment periods are generally not taken into account in the last two years before retirement. The legislature had somewhat restricted this exception rule. If unemployment was due to bankruptcy or giving up business before retirement, the time is still included in the 45 years of contributions.
The first case decided by the BSG concerned an insured person from Lower Saxony who was given notice at the age of 62. The employer had justified this with impending bankruptcy. The company actually went bankrupt just two months after the termination. The man registered as unemployed and wanted to retire at 63 years of age without discount after the new old-age pension for particularly long-term insured persons came into force.
The pension insurance institution rejected the application. The insured had not reached the 45 years of contributions. The unemployment period shortly before retirement could not be taken into account. The reason was that he had already been terminated before filing for bankruptcy. As a result, he was still seven months short of contributions for the discount-free pension.
The plaintiff unsuccessfully pointed out that bankruptcy had threatened and this had actually occurred a short time later.
In the second case too, the plaintiff was denied the discount-free pension from the age of 63, because periods of unemployment shortly before the start of the pension were not taken into account. Here the plaintiff, a former car salesman of Daimler AG, had signed a termination agreement with his employer for health reasons and had thus become unemployed.
Such a reason of unemployment must also be sufficient to be taken into account in the 45 years of contributions, the plaintiff said. He didn't end his job voluntarily, but for health reasons. The fact that only periods of unemployment after bankruptcy or business cessation, but not comparable reasons, are taken into account is arbitrary and constitutes a violation of the principle of equality under the Basic Law.
Both lawsuits were unsuccessful before the BSG. The periods of unemployment benefit receipt shortly before the start of retirement could not be counted towards the required 45 years of contributions. This is only possible in the event of unemployment due to insolvency or a business cessation.
The decisive factor here is the filing of an insolvency application. An impending bankruptcy is not enough. Otherwise there is a risk of abuse. Employers and employees could fake the risk of insolvency for a non-deductible pension.
There are also no constitutional concerns about the applicable regulations. The principle of equality is not violated. In the second case, the plaintiff terminated his employment relationship for personal reasons. This is therefore to be attributed to the sphere of the employee. The plaintiff announced that he would probably file a constitutional complaint against the judgment. fle / mwo