Late marriage clauses are age discriminatory BAG 04.08.2015 - 3 AZR 136/13

The plaintiff's husband, who died in 2010, worked for the defendant. He was entitled to a company pension. There was a dispute between the parties as to whether the plaintiff was entitled to a widow's pension as a widow. The pension regulations contained a so-called "late marriage clause". This clause stipulates that a widow is only entitled to a widow's pension if the marriage is concluded before the age of 60. The marriage was not concluded until 2008, when the husband was already 61 years old.

After the claim was rejected by the first two instances, the widowed claimant was upheld by the Federal Labor Court. The deceased husband was discriminated against on the basis of his age in accordance with Section 7 (2) AGG. The exceptions to the prohibition of discrimination set out in Section 10 AGG also do not apply in this case. At best, a justification could arise from § 10 sentence 3 no. 4 AGG. This stipulates, among other things, that age limits and age criteria for insurance-related calculations may be set for membership of a company pension scheme for old age and invalidity. However, these simplified conditions do not apply to survivors' pensions, which also include widows' and orphans' pensions. The interests of the employees entitled to benefits are unreasonably impaired on the basis of age. As a result, the plaintiff is entitled to a widow's pension.