Rhineland-Palatinate Regional Social Court, 12/08/2015, Ref.: L 6 R 114/15
A special provision in Section 236b SGB VI allows particularly long-term insured persons to temporarily draw an old-age pension without deductions from the age of 63 before reaching the standard retirement age.
To qualify for this pension, you must have 45 years of compulsory contributions from employment and self-employment. Periods of child-raising up to the child's 10th birthday and periods of caring are also taken into account.
However, pensioners who already received a pension with deductions due to early claiming before this special regulation was introduced cannot switch to the deduction-free pension. This was decided by the Dortmund Social Court, among others, in its judgement of 12 June 2015, case reference: S 61 R 108/15.
In the case presented here, the Rhineland-Palatinate State Social Court also had to deal with a pensioner's wish to switch to the old-age pension without deductions.
Facts of the Case The plaintiff in this legal dispute, who was born in 1951, was employed subject to compulsory insurance until the end of 2012.
In October 2012, the plaintiff applied to the defendant for an old-age pension following partial retirement (Section 237 SGB VI). As a result, the defendant granted the claimant an old-age pension after partial retirement from 1 January 2013 in a decision dated 31 January 2013.
The current payment amount initially totalled EUR 1,085.74 net per month. The defendant took into account a reduced access factor due to the early claiming of the pension.
The plaintiff's objection to the granting of a higher payment amount was rejected in a notice of objection dated 22 October 2013. This decision had become final. In the period that followed, the claimant continued to receive the retirement pension granted to him with a reduced access factor.
In a letter dated 15 July 2014 and received by the defendant on 21 July 2014, the plaintiff then applied to switch to the full pension at 63 for particularly long-term insured persons.
The defendant rejected this application in a decision dated 7 August 2014 because the claimant was already drawing an old-age pension following partial retirement. According to the applicable law (§ 34 para. 4 no. 3 SGB VI), a change to another type of old-age pension is excluded.
The objection lodged against this was also rejected in the objection notice dated 30 September 2014.
The plaintiff initially appealed against this to the Speyer Social Court. The Speyer Social Court dismissed the claim on the grounds that the claimant was not entitled to an old-age pension without deductions for particularly long-term insured persons. It was true that the plaintiff fulfilled the requirements for an old-age pension for particularly long-term insured persons on the basis of the provision of Section 38 SGB VI in conjunction with Section 236b para. 1 SGB VI, which came into force on 1 July 2014.
However, the exclusion rule of § 34 Para. 4 No. 3 SGB VI would apply to him, as he would already be drawing an old-age pension after partial retirement.
The plaintiff then lodged an appeal against the court order served on him on 7 March 2015 with the Rhineland-Palatinate Regional Social Court, arguing that he had supported the pay-as-you-go pension system in the same way as others and saw no objective reason why he should not receive the deduction-free pension for himself.
He considers the unequal treatment in comparison to other pensioners to be unjustified discrimination, so that he considers his fundamental right under Art. 3 para. 1 of the German Basic Law (GG) to have been violated by the rejection.
Rhineland-Palatinate State Social Court: The Rhineland-Palatinate Regional Social Court followed the opinion of the Social Court and ruled that the contested notices were lawful and did not violate the claimant's rights.
Pursuant to § 34 para. 4 SGB VI, a change to a 1. pension due to reduced earning capacity, 2. child-raising pension or 3. other pension due to old age is excluded after binding approval of a pension due to old age or for periods of receipt of such a pension.
The provision of § 34 para. 4 no. 3 SGB VI, which is relevant for the change from the old-age pension after partial retirement to an old-age pension after partial retirement for particularly long-term insured persons, consequently provides that an old-age pensioner should remain a permanent recipient of this old-age pension.
34 para. 4 SGB VI expressly excludes the possibility of switching to another type of old-age pension after binding approval or for periods in which the old-age pension is drawn, even if a more favourable access factor would result from switching from one old-age pension, possibly with considerable pension reductions due to early claiming of the pension, to another. The regulation ensures that the insured person who has opted for an early old-age pension and at least turned away from the full-time labour market remains a permanent recipient of this benefit.
34 para. 4 SGB VI is intended to exclude dispositions at the expense of the community of insured persons. Consequently, the insured persons would be held to their disposition and would have to bear the consequences, namely the reduction of the access factor due to early claiming of the old-age pension.
There are no constitutional objections to the provision of § 34 para. 4 SGB VI (BSG, judgement of 26 July 2007 - B 13 R 44/06 R). Therefore, the conversion of the old-age pension requested by the claimant after part-time work from the date of application into an old-age pension without deductions for particularly long-term insured persons pursuant to § 34 para. 4 no. 3 SGB VI is excluded.
The conditions of § 34 para. 4 no. 3 SGB VI were also met. The defendant had granted the claimant an old-age pension after partial retirement on 1 January 2013 by final decision of 31 January 2013. He had actually received the old-age pension since that date and would continue to receive it. The requested conversion constituted a change within the meaning of § 34 para. 4 SGB VI because the eligibility requirements for the desired old-age pension without deductions for particularly long-term insured persons only occurred after the approval and during the receipt of this old-age pension.
The Federal Constitutional Court has already ruled that the reduction of the access factor for early retirement pensions, which is intended to compensate for longer pension terms as a result of early retirement and to ensure the cost neutrality of early pension benefits, is constitutional and is justified to secure the financing of the statutory pension insurance system and thus to maintain its ability to function (BVerfG, decision of 7 February 2011 - 1 BvR 642/09 with further references).
In the opinion of the BVerfG, pension deductions per se are permissible content and limitation provisions within the meaning of Art. 14 GG. The insured person who, knowing of the specific reduction due to early retirement, i.e. with their eyes open, decided to claim an old-age pension early and took advantage of the associated benefits, had to expect a permanent pension reduction for this increase in individual freedom in old age for earlier retirement.
Source: Saxon State Social Court
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