08.05.2019 | KPMG Law Insights

Company pension plan – Adjustment claim in the event of planned restructuring measures

Current case law

Christine Hansen and Jean-Baptiste Abel

Adjustment claim in the event of planned restructuring measures (BAG ruling dated April 26, 2018, 3 AZR 686/16)

The plaintiff claimed an adjustment of his pension benefit as of January 1, 2013. The defendant employer had refused to make the adjustment, citing its own and the Group’s poor economic situation. The Group parent company filed for insolvency proceedings in the USA in the previous year, which were concluded in the current year with worldwide job cuts and extensive restructuring measures. The defendant generated a return on equity of 5.61% (2010), of 4.4% (2011), of 4.15% (2012) and of 2.6% (2013) from 2010 to 2013. The plaintiff has argued that the restructuring measures justify the forecast of a positive economic development.
In the opinion of the BAG, the plaintiff was not entitled to an adjustment of his company pension. The economic situation of an employer justifies the refusal of a company pension adjustment insofar as this places an excessive burden on the company and endangers its competitiveness. This is the case if a forecast shows that the company will not achieve an appropriate return on equity in the adjustment period.
For the forecast, it is not a matter of taking an average of the three previous years, but rather of whether the development suggests that the economic situation in the three years following the adjustment period will be sufficient for the company pension adjustment. These conditions were not met in this case. This was not changed by the fact that restructuring measures had been initiated to stabilize the economy. Such restructuring measures are designed to increase operating results in the long term, he said. At best, these allowed for an uncertain long-term forecast, which did not justify being shaken by the negative forecast made on the basis of the operating results to date.

Conclusion: In this decision, the BAG makes it pleasingly clear that planned restructuring measures alone are not suitable for shaking a negative forecast of the economic situation. Our recommendation – take Section 16 of the German Occupational Pensions Act (BetrAVG) at its word: It is initially an adjustment review obligation. Check at the specific time of the adjustment review whether and to what extent a full or partial suspension of the adjustment of the company pension appears appropriate with regard to the economic situation. We will be pleased to support you in the relevant consideration, the assessment of the net asset value of your company and in the legally effective correspondence on the adjustment decision with the pension recipients.

Explore #more

14.11.2023 | Press releases

Tax and Law at a glance – New issue of the digital magazine “Talk

“Talk” stands for Tax and Law Compass, because that’s what the digital magazine wants to be: a navigation aid to the legal and tax aspects…

10.11.2023 | Deal Notifications

KPMG Law and KPMG AG Wirtschaftsprüfungsgesellschaft advise Ziemann Holvrieka on the acquisition of Künzel Maschinenbau

KPMG Law Rechtsanwaltsgesellschaft mbH (KPMG Law) and KPMG AG Wirtschaftsprüfungsgesellschaft (KPMG) advised Ziemann Holvrieka GmbH from Ludwigsburg on the acquisition of the majority of shares…

09.11.2023 | KPMG Law Insights

Mantelverordnung: New rules for mineral substitute building materials

On 01.08.2023, a number of laws came into force or were amended with the framework ordinance on the recycling of mineral waste: the ordinances…

08.11.2023 | Deal Notifications

KPMG Law advises Wide Open Agriculture on the acquisition of assets of Prolupin GmbH

KPMG Law Rechtsanwaltsgesellschaft mbH (KPMG Law) advised Wide Open Agriculture Limited (WOA) on the agreement to acquire the assets of Prolupin GmbH. The agreement provides…

08.11.2023 | Deal Notifications, Press releases

KPMG Law advises Wide Open Agriculture on the purchase of assets of Prolupin GmbH

KPMG Law Rechtsanwaltsgesellschaft mbH (KPMG Law) has advised Wide Open Agriculture Limited (WOA) on the agreement to acquire assets of Prolupin GmbH. The agreement provides…

07.11.2023 | KPMG Law Insights, KPMG Law Insights

GWB amendment: These interventions threaten after sector inquiries

On April 5, 2023, the German government passed the 11th amendment to the Act against Restraints of Competition (GWB), the so-called Competition Enforcement Act.…

01.11.2023 |

Guest article in the “Versicherungswirtschaft” on autonomous driving

Autonomous cars are supposed to be the future. For the insurance industry, the development is accompanied by new risks, but also promising market prospects. In…

01.11.2023 | KPMG Law Insights

The MoPeG is coming – Here’s how GbRs with real estate should act now

On January 1, 2024, the German Act on the Modernization of Partnership Law (MoPeG) will come into force. Then the civil law partnership (GbR) has…

31.10.2023 |

Philipp Glock on the use of generative AI in the current issue of Juve Rechtsmarkt

ChatGPT has ushered in a new information age. The same applies to law firms: If you want to keep up, you have to stay on…

25.10.2023 | KPMG Law Insights

Podcast series “KPMG Law on air”: Company pension schemes in times of inflation

In times of inflation, both employers and beneficiaries worry about how the devaluation of money will affect company pension plans (bAV). Pension commitments are generally…


Christine Hansen

Senior Manager

Klingelhöferstraße 18
10785 Berlin

tel: +49 30 530199150

© 2023 KPMG Law Rechtsanwaltsgesellschaft mbH, associated with KPMG AG Wirtschaftsprüfungsgesellschaft, a public limited company under German law and a member of the global KPMG organisation of independent member firms affiliated with KPMG International Limited, a Private English Company Limited by Guarantee. All rights reserved. For more details on the structure of KPMG’s global organisation, please visit

 KPMG International does not provide services to clients. No member firm is authorised to bind or contract KPMG International or any other member firm to any third party, just as KPMG International is not authorised to bind or contract any other member firm.