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Case 8 - Pensions funds

Published online by Cambridge University Press:  22 August 2009

Georg Graf
Affiliation:
Professor of Private Law, University of Salzburg, Austria
Monika Hinteregger
Affiliation:
Professor of Civil Law, University of Graz, Austria
Manuela Weissenbacher
Affiliation:
Assistant to the Chair of Civil Law, University of Graz, Austria
Benoit Allemeersch
Affiliation:
Doctoral researcher Catholic, University of Leuven, Belgium; Attorney-at-Law bar of Brussels, Belgium
Alain Verbeke
Affiliation:
Professor of Private and Comparative Law, Catholic University of Leuven, Belgium
Merete Clausen
Affiliation:
Attorney-at-Law, Denmark
Lionel Smith
Affiliation:
Professor of Law, McGill University Canada
Jarmo Tuomisto
Affiliation:
Professor of Civil Law, University of Turku, Finland
François Barrière
Affiliation:
Junior Professor, University of Paris II, France
Stefan Grundmann
Affiliation:
Professor of Private Law European and International Private and Business Law, Humboldt University, Berlin, Germany
George K. Lekkas
Affiliation:
Attorney-at-Law, Athens, Greece
Niamh Moloney
Affiliation:
Professor of Capital Markets Law, University of Nottingham, England
Eoin O'Dell
Affiliation:
Fellow, Trinity College, Dublin, Ireland
Antonio Gambaro
Affiliation:
Professor of Comparative Private Law, State University of Milan, Italy
Michele Graziadei
Affiliation:
Professor of Comparative Private Law, University of Eastern Piedmont, Italy
Steve Jacoby
Affiliation:
Partner Kremer Associés & Clifford Chance; Lecturer, University of Luxembourg
Marielle Koppenol-Laforce
Affiliation:
Attorney-at-Law Houthoff Buruma, NV, Amsterdam the Netherlands
Pedro Pais de Vasconcelos
Affiliation:
Professor, University of Lisbon, Portugal
George L. Gretton
Affiliation:
Lord President Reid Professor of Law, University of Edinburgh, Scotland
Sergio Cámara Lapuente
Affiliation:
Professor of Civil Law, University of La Rioja, Spain
Cristina González Beilfuss
Affiliation:
Professor of Private International Law, University of Barcelona, Spain
Torgny Håstad
Affiliation:
Justice of the Swedish Supreme Court and formerly Professor of Private Law, Uppsala University, Sweden
Michele Graziadei
Affiliation:
Università degli Studi del Piemonte Orientale Amedeo Avogadro
Ugo Mattei
Affiliation:
Università degli Studi di Torino, Italy
Lionel Smith
Affiliation:
McGill University, Montréal
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Summary

Case

A pension fund for employees of a company, that provides a specified benefit upon retirement, has been running for several years. Both the employer and the employees make contributions to the fund. The managers of the fund are of the opinion that there is a surplus of funds as a result of successful investments.

  1. a. Can the employer suspend making contributions?

  2. b. To whom does the surplus belong?

Discussion

AUSTRIA

An employees' pension fund that provides a specified benefit upon retirement, several years after the employer and the employee have made contributions to the fund, is not a ‘pension fund’ according to the Austrian Investment Fund Act. However, Austrian private law recognises alternative concepts that meet the requirements described in Case 8. These alternatives are based on a specific statute called the Betriebspensionsgesetz (BPG). There are basically three pension fund schemes under s. 2 BPG.

The first scheme is called Pensionskasse (s. 2 Z 1 BPG). This pension scheme is an insurance solution that allows the employer to organise the insurance entity. The insurance entity has its own legal personality based on a specific statute, the Pensionskassengesetz (PKG). Both the employer and the employee pay contributions to the insurance entity on behalf of the employee. The employees can claim benefits upon retirement, regardless of whether they still have an employment contract with the same employer.

The second pension fund scheme is a direct promise pension (direkte Leistungszusage) (s. 2 Z 2 BPG).

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Publisher: Cambridge University Press
Print publication year: 2005

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