Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

Invalidity, Old-Age and Survivors' Benefits Convention, 1967 (No. 128) - Germany (Ratification: 1971)

Part V (Standards to be complied with by periodical payments), Article 26 of the Convention. In its previous comments, the Committee decided to postpone its examination of some of the statistical information provided by the Government concerning the level of long-term benefits, following the pension reform in force in 1992. The statistics supplied covered the year 1993. In its last report, which also refers to the statistics supplied under Convention No. 102, the Government provides new and very detailed information on the method of calculating old-age, invalidity and survivors' benefits, together with the relevant statistics, covering the year 1995. The Government established the above statistics on the basis of both gross amounts and amounts after deduction of taxes and social security contributions.

The Committee notes this information with interest. It has also taken account of the statistics supplied by the Government in its 25th Report on the application of the European Code of Social Security and its Protocol. It notes that, if one takes account of the amount of gross periodical payments, before deduction of taxes and social security contributions, as compared to gross earnings, the level prescribed by the Convention cannot be considered as having been reached for the three contingencies mentioned above. In these circumstances and in view of developments in international social security law in particular, the Committee considers it advisable to refer in the comments below only to the statistics provided by the Government which are based on amounts after deduction of taxes and social security contributions.

1. Part II (Invalidity benefit), Articles 10 and 11, and Part IV (Survivors' benefit), Articles 23 and 24. The Committee notes that the statistical information supplied by the Government on the level of invalidity and survivors' benefits takes account, in determining remuneration points (one of the four decisive factors in calculating the benefit) not only of periods of contribution, but also additional periods, i.e. periods between the onset of the contingency and the date corresponding to the 60th birthday of the insured person (section 59 of the SGB VI). Accordingly, in its last reports on the European Social Security Code and Convention No. 102, the Government bases its calculations of the levels of invalidity and survivors' benefits on the assumption that a minimum of 35 years of insurance would be credited. The Government has already had recourse, in its previous reports, to additional periods in order to meet the level of invalidity and survivors' benefits prescribed by the Convention, in accordance with paragraph 5 of Articles 11 and 24. However, the Committee understands that the situation has been changed by the pension reform which came into effect in 1992, to the extent that additional periods are no longer automatically credited in their entirety to all insured persons, but now depend on periods of affiliation to the insurance and, in particular, on "missing periods" (Lücken). Under the new legislation, non-contributory periods are no longer credited with the average value of contributions actually paid, since the so-called overall validation method, which is based on contributions, implies that non-contributory periods are credited with a lower value when there are gaps in affiliation to the insurance (see sections 71 to 75 of SGB VI).

The Committee is fully aware of the advantages that counting additional periods otherwise presents for insured persons - and their families - when invalidity or death occurs at a relatively young age. However, so that the Committee can better ascertain how the provisions of the Convention are applied in practice, it asks the Government to indicate in its next report the number of beneficiaries of invalidity and survivors' benefits for whom the level of the benefit is lower than that prescribed by the Convention because there are gaps in the period of their insurance contributions. In this context, the Committee also notes that, according to the Government's statement in its report on the application of the European Code of Social Security, in respect of benefits for reduction of earning capacity paid for the first time to male beneficiaries in the manual workers' invalidity-old-age insurance scheme, the relevant periods that counted towards the pension and were validated in 1994 on average to 39.8 years in the old Länder and 40.4 years in the new Länder. It asks the Government to confirm that these statistics take account of any gaps noted in the career of the insured persons. It also hopes that the Government will be able to provide the same information in respect of the salaried employees' invalidity-old-age insurance scheme as well as insured persons who are women.

The Committee further notes, from the statistics provided by the Government in its report on the application of Convention No. 102 and the European Code of Social Security that, in the new Länder, the level of invalidity benefits (after deduction of taxes and social security contributions), for a standard beneficiary attained, in 1995, 47.2 per cent of the previous earnings (net) for a qualifying period, including the additional period, of 35 years (due account being taken of the family allowances paid during employment and during the contingency). The Committee hopes that in its future reports the Government will be able to indicate the progress made in gradually bringing the level of invalidity benefits in the new Länder up to that prescribed by the Convention (50 per cent of the reference wage).

2. Part III (Old-age benefit), Articles 17 and 18. The Committee notes from the information supplied by the Government in its reports on Convention No. 102 and on the European Code of Social Security that the level of the old-age benefits (net) paid to a standard beneficiary (with a wife of pensionable age) who, in accordance with Article 29 (paragraph 1(a)) of the Convention, has completed a qualifying period of 30 years' contributions, attained 46 per cent of the reference wage (net) in 1995 in the old Länder. In the new Länder, however, the rate is only 42.4 per cent whereas the level prescribed by the Convention is 45 per cent. In these circumstances, the Committee hopes that in its future reports the Government will continue to provide information on progress made in gradually raising the level of old-age benefits in the new Länder to the percentage prescribed by the Convention.

3. The Committee notes the information supplied by the Government in the addendum to the report on Convention No. 102, concerning, inter alia, the number of workers protected in the old Länder. It hopes that the Government's future reports will provide the same information for the new Länder.