08.05.2019 | KPMG Law Insights

Company pension scheme – pension commitments and breach of trust

Current case law
Christine Hansen and Jean-Baptiste Abel

Pension commitment and breach of trust (BAG ruling dated April 26, 2018, 3 AZR 738/16)

The employee had been promised benefits under the occupational pension plan. After the entitlement had vested, he had caused his employer serious, albeit not existentially threatening, damage by committing a criminal act. The advisory board of the provident fund, which is made up of equal numbers of members, then revoked the pension commitment. Eight years later, when the employee’s marriage was dissolved, the family court did not take into account the pension entitlements.
About two years later, the plaintiff claimed – before retirement – that the revocation of his pension commitment was invalid. After the Labor Court had granted the claim, the Regional Labor Court dismissed the claim. The appeal before the BAG was successful.
The BAG took the view that the employer could not rely on the family court decision that there were no company pension entitlements. The family court had to examine only as a preliminary question whether a pension claim existed. If this claim is uncertain, the family court must suspend the proceedings until a decision has been made on the claim under employment law.
The employer could also not invoke the revocation of the pension commitment on the grounds of breach of trust. The binding subsumption of facts under individual factual characteristics exceeds the limits of a permissible arbitration agreement. Due to the remuneration character of the company pension scheme, a revocation of pension commitments is only possible if the employee has defrauded the vesting of his or her pension entitlement by covering up serious misconduct or has caused irreparable, irreparable damage to the company’s existence through gross misconduct. The interests of the employer are sufficiently protected by claims for damages and the possibility of offsetting against the pension claims.

Conclusion: The BAG consistently continues its case law on the revocation of pension commitments and emphasizes the remuneration character of the company pension plan. The relationship between the family court judgment and the labor court judgment, on the other hand, remains an “open building block.” It will be interesting to see how the Federal Court of Justice and the Federal Labor Court (Bundesarbeitsgericht – BAG) combine the decision on pension equalization and any subsequent decision on the underlying occupational pension scheme with regard to the liability.

Explore #more

27.03.2024 | KPMG Law Insights

EU Buildings Directive: life cycle greenhouse potential becomes relevant

On March 12, 2024, the EU Parliament approved the amendment to the EU Buildings Directive. The directive obliges member states and, indirectly, building owners and…

19.03.2024 | Business Performance & Resilience, KPMG Law Insights

CSDDD: Provisional agreement on the EU Supply Chain Directive

The EU member states agreed on the CSDDD, the EU Supply Chain Directive, on March 15, 2024. Germany abstained from the vote. Negotiators from the…

19.03.2024 | KPMG Law Insights

The AI Act is coming: EU wants to get a grip on AI risks

For many people, artificial intelligence (AI) is the great hope for business, healthcare and science. But there are also plenty of critics who fear the…

21.02.2024 | KPMG Law Insights, KPMG Law Insights

The Digital Services Act – what does it mean for companies?

The Digital Services Act (DSA) is a key component of the EU’s digital strategy and came into force on November 16, 2022. As a regulation,…

15.02.2024 | KPMG Law Insights

Data compliance management: How to implement it in practice

Part 3 of the article series “Professional tips for data compliance management”   The third part of this series of articles deals with data compliance

14.02.2024 | Business Performance & Resilience, PR Publications

Guest article in ZURe: Monitoring the implementation of the LkSG

The current issue of ZURe (p. 20 ff.) contains a guest article by KPMG Law Partner Thomas Uhlig (Head of General Business and Commercial Law),…

09.02.2024 | KPMG Law Insights

Podcast series “KPMG Law on air”: The employment law function

In almost all German companies, the employment law function is located in the HR department and not in the legal department. One of the reasons…

24.01.2024 | KPMG Law Insights

How the new unitary patent works – ten facts

The new unitary patent can be applied for at the European Patent Office (EPO) from June 1, 2023. The Implementing Regulations and the Schedule of

22.01.2024 | PR Publications

Guest article in the Börsen-Zeitung on the subject of EU antitrust regulations

Agreements with competitors on sustainability efforts may violate antitrust law. Which legal interest should then take precedence? KPMG Law expert Jonas Brueckner discusses this question…

18.01.2024 | KPMG Law Insights

AI and copyright – what is permitted when using LLMs?

A few months ago, new players entered the legal scene and have since caused numerous legal discussions: Large Language Models (LLM), better known as…


Christine Hansen

Senior Manager

Klingelhöferstraße 18
10785 Berlin

tel: +49 30 530199150

© 2024 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.