Employment Injury Benefits Convention, 1964 [Schedule I amended in 1980] (No. 121) - Germany (Ratification: 1972)

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee has examined the consolidated report (CR) on the application of ILO social security Conventions ratified by Germany (Conventions Nos 102, 121, 128 and 130), for the period 2006–16. It has also noted the observations received from the German Confederation of Trade Unions (DGB) in September 2015, on the application of Convention No. 128 and in December 2016 on the application of Conventions Nos 102, 121 and 128.

Old-age benefit (Part V of the CR), Article 15(2) of Convention No. 128. Pension age. The Committee notes that, since 1 January 2012, pension age for statutory old-age pension has gradually increased to 67 for people born in the years 1947–64. This measure has been taken as a result of demographic trends characterized by an increasing life expectancy and low birth rates. The Committee requests the Government to provide information on the demographic, economic and social criteria (demonstrated statistically) justifying the increase of the statutory pension age beyond 65 years.

Article 35 of Convention No. 102 and Article 26 of Convention No. 121. Prevention, rehabilitation and placement services. The Committee notes that according to the CR, the statutory occupational accident insurance funds cooperate closely with the occupational rehabilitation funds and other public and private bodies. The Committee requests the Government to indicate the measures taken by these bodies to promote the placement of persons with disabilities in suitable employment, illustrated by the corresponding statistical data.

Article 35(3) of Convention No. 102 and Articles 14(4) and (5) and 15 of Convention No. 121. Lump-sum payment. The Committee requests the Government to provide information on the conditions under which the employment injury benefits could be converted into lump-sum payment.

Article 16 of Convention No. 121. Increments and reassessment of payments. The Committee requests the Government to indicate what increments or complementary benefits are provided for persons with disabilities requiring the constant help or attendance of another person.

Article 18(2) of Convention No. 121. Funeral benefit. The Committee requests the Government to indicate how effect is given to this provision of the Convention in the national legislation and practice.

Article 72 of Convention No. 102 and Article 24 of Convention No. 121. Administration of the scheme. The Committee requests the Government to provide further information on how the employment injury insurance scheme is managed and whether the persons protected participate in its administration.

Standards to be complied with by periodical payments (Part XI of the CR). Article 26 of Convention No. 128. Replacement rate of the old-age, invalidity and survivors’ benefits. The Committee recalls that in order to show compliance with the replacement rate of the statutory old-age pension of 45 per cent after a qualifying period of 30 years of contribution prescribed by the Convention, the Government takes into consideration additional non-contributory periods, which increase the contribution period to 36 years and consequently distort the calculation of the pension replacement rate. The same non-contributory periods are also added to the qualifying period taken into consideration for the calculation of the replacement rate of the invalidity pension and the survivors’ pension, increasing it from 15 to 21 years contrary to the Convention. The Committee requests the Government to calculate the replacement rate of the statutory old-age pension of the standard beneficiary after 30 years of contribution and of the invalidity and survivors’ pensions after 15 years of contribution, without adding any non-contributory periods.

The Committee requests the Government to calculate the replacement level of the reduced old-age, invalidity and survivors’ pensions in accordance with Articles 11(2), 18(2) and 24(2) of Convention No. 128.

Applying Conventions Nos 102, 121, 128 and 130 on the basis of minimum benefits. The Committee recalls that ILO social security Conventions on the example of Convention No. 102 can be applied on the force of social insurance schemes providing earnings-related benefits (Article 65 of Convention No. 102) or flat rate benefits (Article 66), or social assistance schemes providing means-tested benefits (Article 67). Another option consists in applying these Conventions on the basis of basic income security guarantees where a social insurance scheme provides a minimum benefit, or a fixed basic amount as part of the earnings-related benefit, or where there is a guaranteed minimum income scheme or a universal social pension. The Committee systemically looks at this option every time when the regular benefit provided by the scheme in question does not attain the level prescribed by the Convention in question. It observes that the importance of the minimum benefits for the application of the Conventions has been growing steadily inasmuch as in many countries the replacement level of regular benefits showed a marked downwards trend, falling below the percentage prescribed by the Conventions and, for low wage earners, even below the poverty line in absolute figures. For the ordinary labourers a guaranteed minimum pension often provides better protection in terms of the Conventions, as they retain little chances of earning higher pension after 30 years of insurance.

According to Convention No. 102, the amount of a guaranteed minimum cash benefit, whichever form it takes, shall not be less than the corresponding benefit calculated in accordance with the requirements of its Article 66. For the family of the standard beneficiary, this amount shall be such as to attain, in respect of the contingency in question, at least the percentage of the reference wage of the ordinary adult male labourer indicated in the Schedule to Part XI of the Convention. For other beneficiaries with different family responsibilities, the guaranteed minimum benefit shall bear a reasonable relation to the benefit of the standard beneficiary (Article 66(3)). In all cases, the resulting amount shall be sufficient to maintain the family of the beneficiary “in health and decency” (Article 67(c)) under the conditions of entitlement prescribed by the corresponding Part of the Convention with respect to the qualifying period, age and duration of payment. This adequacy criteria comes forward when the amount of the minimum benefit calculated as a percentage of the reference wage of the ordinary labourer falls below the poverty threshold to a point incompatible with living in “health and decency”. With respect to maintaining the family of the beneficiary in conditions of health, the minimum benefit shall be sufficient to cover the required cost-sharing by the beneficiary in the medical care guaranteed to his family under Part II of Convention No. 102 in such a manner as to avoid hardship and not to prejudice the effectiveness of medical and social protection (Article 10(2)). Persons on minimum benefit in need of health care should not face an increased risk of poverty due to the financial consequences of accessing the types of health care specified in Article 10(1). With regard to maintaining the family of the beneficiary in conditions of decency, the minimum benefit, together with other statutory social protections, shall allow life in dignity and provide income above the national poverty line or similar income threshold, preventing vulnerability and social exclusion. The entitlement to the minimum benefit shall not be subjected to any additional conditions of a discriminatory nature applied to any member of the family of the beneficiary, and shall not deprive the beneficiary of the acquired social and insurance status, including the rights acquired or in the course of acquisition under the statutory social security schemes. When the legislation makes the provision of social security benefits conditional upon occupational activity, periods during which minimum benefits are paid should normally be taken into consideration for acquisition of the right to other social security benefits. The rate of social insurance contributions or taxation or both applied to minimum benefits shall be determined in a manner which avoids hardship to persons of small means with due regard to social justice and equity (Article 70(1)). The current rates of the minimum benefits in respect of the long-term contingencies shall be adjusted to the cost of living (Article 66(8)). In the light of these explanations, the Committee requests the Government to assess whether and to what extent the existing minimum social security guarantees comply with the abovementioned requirements of Convention No. 102 as to their level and conditions of entitlement, and could be used to give effect to its provisions under each accepted Part of the Convention. For the relevant statistical indicators concerning income, poverty and wages, the Government may wish to refer to the ILO technical note.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes that, according to the Government's report, the Act codifying accident insurance schemes, which has been in force since 1 January 1997, placed all the legislation respecting compulsory accident insurance under Book VII of the German Social Code. Although this revision of the legislation did not, according to the Government, constitute a fundamental reform of the practical provisions of the law, it introduced in the law governing the provision of benefits a number of changes. In particular, the period for which daily benefits are provided in respect of accidents was aligned with the period for daily benefits for sickness (78 weeks), and the possibilities were broadened for the provision of a lump sum in place of periodical payments. Since the report contains no details on these matters, the Committee requests the Government to provide detailed information on the possible impact of these measures on the application of Article 9, paragraph 3, of the Convention (Provision of the benefits throughout the contingency) and Article 15, paragraph 1 (Conversion of periodical payments into lump sums).