Already in the first supreme court ruling on this hot topic dated 30.08.2001 (Az.: - B 4 RAсс 118/R), the Federal Court recognized the right of a female claimant from the circle of late resettlers to simultaneously receive two types of material security - her own old-age pension and a widow's pension for her deceased husband. The exact number of eligible recipients of additional pension security is unknown to me, but it is clear that at present and in the coming years we are talking about tens of thousands of people. The implementation of this fundamental decision of the highest court and the transfer of funds to the Offshore Account of emigrants would cost the pension funds a large sum of money. Therefore, in the vast majority of cases, the funds refuse to comply with this unambiguous decision of the Federal Social Court.
Massive "isolated" cases
Executive self-governing public bodies, namely the state pension insurance funds, cannot simply ignore the judicial authority. Therefore, eligible applicants received a standard refusal with the wording that the pension funds do not consider the aforementioned decision of 30.08.2001 to be a guiding judicial instruction, but view it as an isolated decision on a specific complaint. In essence, this meant that the funds offered each applicant individually to litigate their right to a widow's/widower's pension in various instances. From my point of view, the meaning of this modus operandi is simple and was defined by Khoja Nasreddin: "In ten years, either the donkey, the Shah, or I will die." Perhaps the funds speculated that various judicial instances and senates of the complex legal hierarchy of the Federal Republic of Germany would make contradictory decisions on this issue, or simply hoped to drag out the procedure.
Such a course of action is no longer possible. Not long ago, in three new rulings on this issue (Urteile vom 11.03.2004, Az.: B 13 RJ 44/03, B 13 52/03 R, B 13 56/03 R), the Federal Social Court confirmed the point of view it had first expressed in August 2001 regarding the essence of widow's pensions. In the case examined by the court, both spouses lived and led a joint family life on the territory of the former USSR. In August 1997, the husband died on the territory of Russia. After his death, the widow moved to the Federal Republic of Germany under the status of a late resettler (§4 BVFG).
The competent German pension fund awarded the widow a large widow's pension starting from December 1997. The joy turned out to be premature: the fund refused to pay the accrued widow's pension, citing the woman's own pension income in the amount of 25 assessment points (Entgeltpunkte). These points are a conditional value used to calculate the real amount of the pension in cents and euros. According to the pension fund's interpretation of the law, the Act on Pension for Foreign Employment Periods (Fremdrentengesetz) allegedly limited the amount of the pension for such periods to 25 assessment points. This volume was exhausted by the widow's personal old-age pension, the fund explained to the claimant. The plaintiff disagreed with this interpretation, and the litigation proceeded.
The right to two pensions is enshrined in law
In its verdict of March 11 of this year, the Federal Social Court established that the social insurance institution had unconditionally recognized the widow's right to payment of the large widow's pension. In this way, the plaintiff acquired a material claim that cannot be taken away from her on the basis of the unclear legal views of the pension fund's case worker. Paragraph 22 b of the Act on Pension for Foreign Employment Periods, to which the funds constantly refer, does limit the late resettler's own claims to 25 assessment points. This limitation, however, does not apply to the right to material security from other legal relationships and to receipt of a pension for the deceased spouse.
The family's insurance security after the loss of the breadwinner should represent a replacement for the income that the deceased previously contributed to the family budget. Therefore, the legislator makes fundamental distinctions between one's own pension claims earned through the payment of insurance contributions and the right to security for a deceased breadwinner. The surviving spouse earned the latter form of material security not through their own labor contributions, but through forming and living in a joint family community.
The law does not contain a requirement to limit the recipient's total income to 25 points. Consequently, late resettlers are entitled to two pensions: one for their own employment record and one for loss of breadwinner. In short, the funds are obliged to pay eligible applicants the large widow's pension. I should point out that the Act on Pension for Foreign Employment Periods limits the pension of both living spouses to 40 assessment points. It must not be the case that widowers/widows receive better security than jointly living spouses. Therefore, the limit on total payments for foreign employment periods cannot exceed 40 points. Still, an addition to the pension of 15 points means a significant improvement in the pensioner's financial situation.
What now?
These three higher court rulings favorable to widowers/widows can no longer be ignored by the competent pension funds (Federal Insurance Institution for Employees, regional insurance institutions, and the Federal Miners' Insurance Office). If pension funds close their eyes to these unambiguous directives from the highest judicial authority, they will put themselves outside the legal framework. Therefore, all widowers/widows from the circle of late resettlers (§4 BVFG) can, with full confidence in the said decisions of the Federal Social Court, submit a new application demanding the calculation and payment of a widower's/widow's pension in the total amount of up to 40 earnings points. Should the funds refuse to comply with the applicant's lawful claim, you can seek support from the judiciary; the goddess of justice is on your side.
Special instructions for residents of the CIS
If you intend to move to Germany under the status of a late resettler, you should think about collecting all necessary documents about the deceased spouse's employment history and documentary proof of your marital relationship with him/her while still in your country of origin. These include the work record book, military ID, certificates from the place of employment or from the trade union, proof of time spent raising children, marriage certificate, children's birth certificates, and so on. Complete documentary evidence will greatly assist you in the Federal Republic of Germany when calculating the widow's/widower's pension. Incidentally, it is also paid when the deceased spouse did not belong to the German ethnic group.
This article serves general information purposes and cannot replace individual consultation.
Thomas PUE, German lawyer.
Specially for "Zagranitsa".