Direct Request (CEACR) - adopted 2024, published 113rd ILC session (2025)

In order to provide an overview of issues relating to the application of ratified social security Conventions, the Committee considers it appropriate to examine Conventions Nos 102, 121, 128, and 130 together.

Articles 35, 36(3), and 72 of Convention No. 102; Article 15(2) of Convention No. 128; Articles 14(4) and (5), 15, 16, 18(2), 24 and 26 of Convention No. 121; and Convention No. 130. The Committee takes note of the information provided by the Government in its report concerning: (i) pension age; (ii) prevention, rehabilitation and placement services; (iii) lump-sum payment; (iv) increments and reassessment of payments; (v) funeral benefit; (vi) administration of the scheme; and (vii) minimum benefits.

Article 26, in conjunction with Articles 11(1)(a), 18(1)(a) and 24(1)(a) of Convention No. 128. Replacement rate of the old-age, invalidity and survivors’ benefits. The Committee notes from the Government’s report that the calculations of the old-age, invalidity and survivors’ pensions once again take into consideration additional non-contributory periods. Furthermore, the calculations of the old-age pension include personal pension savings or so-called “Riester pensions” provided by private insurance companies or other financial institutions. The Committee recalls in this respect that to include “Riester pensions” in the calculation of replacement rates of benefits under Article 26 of the Convention, such pensions should meet the requirements of Article 6 as regards voluntary insurance schemes. The Committee further recalls that replacement rates of benefits shall be calculated only based on the periods of contribution of 15 years for invalidity and survivors’ benefits and 30 years for old-age benefits, in line with Articles 11(1)(a), 18(1)(a) and 24(1)(a) of the Convention. The Committee reiterates its request to the Government to calculate the replacement rates of the statutory old-age, invalidity and survivors’ pensions without adding any non-contributory periods. The Committee further requests the Government to provide information on the compliance of “Riester pensions” with Article 6 of the Convention, should the Government decide to add “Riester pensions” into the calculation of replacement rates of benefits under Article 26 of the Convention.

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.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes that, on 5 September 2013, the German Confederation of Trade Unions (DGB) communicated comments on the application of the Convention. In these comments, the DGB recalls that, according to calculations provided in the Government’s report regarding old-age benefit for the period 2010–11, an employed person earning 125 per cent of the net average income of all persons protected would receive a net old-age pension corresponding to 69.1 per cent of previous earnings in the old federal Länder and 68.6 per cent in the new federal Länder, whereas the replacement rate required by the Convention is set at 45 per cent. The DGB considers that this assumption should be examined critically since, in order to reach this replacement rate after a period of 30 years of contribution or employment, the Government has taken into consideration two sets of additional components which have the effect of increasing the basic pension of the standard beneficiary: (i) certain periods for which no contributions were due, such as 15 months of military service, three years of training and two years of technical college, have been added as they have the effect of increasing the contribution period and, consequently, the basic old-age pension from 41.49 to over 49 per cent of the reference wage. Without these elements, the basic pension granted to a person earning 125 per cent of the average wage of all persons protected, after 30 years of contribution, would amount to around 42 per cent of previous earnings, which is below the threshold of 45 per cent required by the Convention; (ii) the amount of a supposed additional private old-age pension has also been added to the basic old-age pension which has the effect of raising the net replacement rate to approximately 69 per cent of the reference wage. However, some 30 per cent of the total number of workers are not covered either by a supplementary occupational pension scheme or a “Riester” pension scheme and this percentage increases to 42 per cent in the low-income brackets, while the Convention requires pension coverage of all employees. The DGB therefore estimates that, particularly for the low-income groups, the actual level of old-age protection in Germany is considerably less than assumed by the federal Government and stresses that, as party to the Convention representing the minimum standard for well-developed countries, Germany should fulfil the obligation to provide benefits beyond the level needed merely to avoid poverty in old age and seek to ensure income replacement closer to previous earnings so that better social benefits can be guaranteed by growing prosperity. The Committee requests the Government to provide its reply to the above observations in time to allow examination of the situation at its next session in November–December 2014.

Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

Part IV (Unemployment benefit) of the Convention, Article 20 (in conjunction with Article 69). In its previous comments, the Committee has been drawing the Government’s attention to the fact that the conditions governing the suspension of the entitlement to unemployment benefit established by sections 119 and 121 of Book III of the Social Code (SGB III) may in certain respects be more restrictive than those derived from the definition of the contingency contained in Article 20 of the Convention, as the suitability of employment offered by the placement services was no longer assessed in accordance with such generally recognized criteria as skills, qualifications, acquired experience and length of service in the previous occupation of the person concerned. In reply, the Government indicates that the provisions on suitability of employment are not exclusively governed by section 121, SGB III, but also by the general principles laid down in section 1, SGB III. These state that employment promotion benefits, placement services being part of them, serve above all to promote individual employability by preserving knowledge, skills and abilities, and to counteract inferior employment. The local employment agencies are following these principles in their placement activities by attempting to integrate unemployed persons primarily in line with their qualifications. However, if, in the labour market exposed to structural adjustment and globalization, placing the person into employment equal to that previously exercised is evidently impossible, the answer to the question whether employment offered in other occupation is suitable to him is based on the level of remuneration in relation to his prior income. In the light of these aspects, the Government suggests the reconsideration and, if necessary, amendment of Article 20 in conjunction with Article 69 of the Convention, as these provisions date back to 1952 and are no longer in line with the labour policy in the age of globalizations.

The Committee draws the Government’s attention to the fact that Article 20, in relation to Article 69 of the Convention, has been reconsidered by the adoption of the Employment Promotion and Protection against Unemployment Convention, 1988 (No. 168), which Germany has not ratified. In contrast with Convention No. 102, which contains no definition of the term “suitable employment”, Article 21(2) of Convention No. 168 includes an expressly defined set of criteria to be used in assessing the suitability of employment. The application of these criteria, “under prescribed conditions and as far as appropriate”, to concrete cases of unemployment is left much to the discretion of the responsible national authorities, which often have to strike a difficult balance between taking into account previous experience and qualifications of the unemployed person on the one side and the actual state of the labour market on the other side, where the demand for such qualifications may be an uncertain variable. In this context, the Committee has always been vigilant to ensure that, whatever discretionary power the State might have retained to judge the employability and the behaviour of unemployed persons in the current labour market situation, they are treated with due respect for their acquired professional and social status and any sanctions imposed on them are kept inside the limits prescribed by Article 69 of Convention No. 102. The Committee would therefore like the Government to continue to indicate in its future reports any changes in the national legislation and practice related to the conditions governing entitlement to and suspension of unemployment benefit.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the detailed statistics and explanations provided by the Government with regard to the methods of calculation and adjustment of the old‑age, invalidity and survivors’ pensions, which have been the subject of the Committee’s dialogue with the Government for a certain number of years.

Part II (Invalidity benefit) and Part VI (Survivors’ benefit) of the Convention. In its previous comments, the Committee asked the Government to show, by means of concrete examples, the impact on the calculation of the invalidity and survivors’ benefits of an intermittent career containing both missing and credited periods and to provide calculations of their replacement rate for a standard beneficiary whose career after the age of 17 included periods of education, self-employment or unemployment until age 30 when he started uninterrupted salaried employment for 15 years and became invalid at age 45. The Committee would once again ask the Government to provide this information, including examples of calculations for the same beneficiary who, before having a stable employment career at the age of 30, spent maximum allowed periods on unemployment benefits I and/or II.

Part III (Old-age benefit). In its previous conclusions, the Committee requested the Government to provide updated calculation of old-age pension to show that it reaches the replacement rate of 45 per cent prescribed by the Protocol for a man having 30 years of contributions or employment, a wife of pensionable age and no dependent children. The Government indicated that calculations made on this basis resulted in a replacement rate of 42.8 per cent of the reference salary in the old Länder and 42 per cent in the new Länder, whereas calculations based on 35 years of contributions gave the replacement rates of 49.9 per cent in the old Länder and 49 per cent in the new Länder. According to the Government, it would be extremely unrealistic to base the calculation of the pension’s replacement rate on an employment period of 30 years, since under the German pension law many additional periods were included in the insurance career of the person concerned and credited for pension purposes. In 2004, 79.9 per cent of the first-time male pension recipients had an insurance career of over 35 years. According to the detailed information provided by the Government, such additional periods comprise three main types of periods: (1) periods for which contributions for the person concerned are paid by the State or the insurance agency (e.g. periods of training, military or civilian service, child rearing, care provision, receipt of wage replacement benefits such as sickness, injury, unemployment benefits, etc.); (2) added periods for which no contribution is paid but which are nevertheless valuated and increase the pension (e.g. professional schooling, maternity protection), as well as “zero” added periods which do not increase pensions directly (e.g. unemployment); (3) credited periods (Berücksichtigunszeiten) which serve to close gaps in the insurance career caused by rearing children up to the age of 10. The Committee understands, from the explanations given in the report, that in the German pension system a standard beneficiary having completed the qualifying period of 30 years of employment referred to in Article 18(1)(a) of the Convention, would have in fact a longer insurance career extended by additional periods credited to him for military service, schooling, unemployment, etc., which would give an added value to his pension. The Committee further notes that, according to the statistics provided in the Government’s 35th report on the application of the European Code of Social Security (2005-06), in order to obtain an old-age pension at the level of 45 per cent of his previous earnings guaranteed by the Convention, the standard beneficiary should have an employment record of 32 years. It would therefore ask the Government to indicate in its next report what additional periods could normally be included in the insurance career of the standard beneficiary with the effect of increasing his pension by the same amount which would bring two additional years of regular employment. Please provide statistics on the percentage of the first-time male pension recipients with an insurance career of over 32 years.

The Committee also notes that the Act on need-oriented basic protection in old age and in the case of reduced earning capacity (Gesetz über eine bedarfsorientierte Grundsicherung im Alter und bei Erwerbsminderung – GsiG), which came into force on 1 January 2003 and was subsequently integrated in the SGBXII, was meant to combat poverty in old age. The basic need for livelihood is to be guaranteed for persons over 65 years of age who have withdrawn from working life for good and whose income is not sufficient to maintain their livelihood. It is not necessary to actually draw an old-age pension. Since October 2003, all pensioners are provided with targeted information regarding benefit entitlements under this Act by their pension insurance fund if their respective incomes do not exceed the monthly amount of 844 euros. The Committee would like the Government to indicate to what extend the dependent wife of pensionable age of the standard beneficiary could benefit from the basic protection in old age under this Act or under social assistance provisions, taking into account that the net monthly income of the couple will amount to 889.25 euros.

Part V (Standards to be complied with by periodical payments), Article 29. In its previous direct request, the Committee asked the Government to explain the practical effect of the new pension adjustment rules established by the Act to secure the sustainable financial basis of the statutory pension insurance (Pension Insurance Stability Act) (Gesetz zur Sicherung der gestzlichen Rentenversicherung – RV-Nachhaltigkeitsgesetz), which entered into force on 1 January 2005 and modified the formula for the adjustment of pensions by introducing a sustainability factor, through which the correlation between persons receiving benefits and persons in compulsorily insured employment is taken into account when pension adjustments are made. In reply, the Government indicates that the sustainability factor (Nachhaltigkeitsfaktor) was first calculated for the period from 1 July 2005 onwards at the rate of 0.9939, which mathematically would have meant a reduction of the current pension value by 0.61 per cent. The application of the so-called Riesterfaktor reflecting changes in the proportion of old-age provision would have led to a further reduction of the current pension value by 0.62 per cent. These reductions however were not implemented due to a legal safeguard clause precluding combined application of both factors resulting in a reduction of current pension value, which was therefore left unchanged. According to the report, such “moderation of pension adjustments necessary to stabilize the system” were to be implemented at a later stage after 2010.

The Committee understands that, be it not for the safeguard clause, under the present circumstances the new pension adjustment factors operate in such a way as to reduce the current pension value and that such “moderation” necessary to stabilize the system will be used to offset possible increases in the pension rate after 2010. It also notes that the rate of pension adjustments in 2004 and 2005 was zero and that over the five-year period (2000-05) growth in pensions (1.08) lagged behind the increase in consumer prices (1.61). In order to better assess the long-term effects of the new pension adjustment rules, the Committee would like the Government to explain, on the basis of existing actuarial studies, what stabilization results are expected to be achieved in the German pension system by moderating adjustment of pensions in the foreseeable future. Please continue to supply detailed statistics on the changes in pensions in comparison with the general level of earnings and the cost of living required by the report form under Article 29 of the Convention.

Finally, taking into account the highly complex technical nature of the questions involved and the high sensitivity of the results to the choice of the methodology used for calculating the level of benefits, as well as the need to coordinate the country’s obligations under ILO and European social security standards, the Committee wishes to draw the Government’s attention to the suggestion of seeking clarification of these issues through technical cooperation that it makes in the conclusions concerning the 35th report on the application by Germany of the European Code of Social Security.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

I. With reference to its previous comments, the Committee wishes to draw the Government’s attention to the following points.

1. Part II (Medical care), Article 16, paragraphs 2 and 3, of the Convention. With reference to its previous comments, the Committee notes that, according to the Government’s report, persons whose membership in the statutory health insurance fund ceases during a period of illness because their employment has been terminated remain insured as long as they are entitled to sickness benefit (section 192, paragraph 1(2), of the 5th Book of the Social Code). Entitlement to sickness benefit is limited to 78 weeks. Moreover, the persons whose employment has been terminated and who are receiving unemployment benefit or unemployment benefit II are covered by the statutory health insurance system, in accordance with the Fourth Act on modern labour market services of 24 December 2003. In such cases, family insurance which was in effect before the termination of employment continues for as long as the person receives unemployment benefit. Furthermore, the family members of persons receiving unemployment benefit II, who are included in the category of persons requiring insurance under section 7(3), Book II, of the Social Code, are subject to compulsory insurance if they are not covered by family insurance. In addition, the children of persons covered by family insurance are also covered by family insurance without paying contributions (section 10(1)(1) of the Act to simplify administrative procedures in social law of 21 March 2005). The Committee notes this information. With regard to persons who, following termination of employment, are entitled to neither unemployment benefit or unemployment benefit II, the Committee notes that they may join the statutory health insurance system on a voluntary basis within three months of the end of coverage, provided that they have previously been insured under the statutory scheme for a minimum period of 12 months before their coverage ended, or for a total period of 24 months in the previous five years.

The Committee understands that in practice most of the persons in the situation referred to above are covered by compulsory insurance, as sickness benefit continues to be paid for 78 weeks to a person and his/her family members even where termination of employment occurs before the expiration of the period of entitlement to sickness benefit. In addition, persons who do not receive sickness benefit, but are entitled to unemployment benefit II, and their family members, are covered by the statutory health insurance. However, it would appear from the information provided in the report that those persons whose employment is terminated and who receive neither sickness nor unemployment benefit and who are in need of medical care have to take out voluntary insurance. The Committee would be grateful if the Government would confirm whether this interpretation is correct. The Committee would also be grateful if the Government would confirm whether a person who takes out a private insurance and his/her family members are covered without a qualifying period. Please also indicate the manner in which German legislation ensures that insured persons who have worked for fewer than 12 months, those who are dismissed or leave their employment voluntarily, and who are not entitled to unemployment benefit, as well as their family members, are entitled to medical benefit for a minimum period of 26 weeks, as required by Article 16, paragraph 2, of the Convention.

2. Part III (Sickness benefit), Article 27. In its previous comments, the Committee noted that section 58 of Part V of the German Social Code provides that a funeral grant shall be paid only if the deceased person was insured on 1 January 1989 and requested the Government to provide statistical information on the number of persons covered by voluntary and compulsory insurance which provides for a funeral grant, as required under Article 27, paragraph IV, of the Convention.

According to the Government’s report, the Committee notes that the entry into force of the Act to modernize statutory health insurance of 1 January 2004 abolished the death grant. In this respect, the Committee would like to point out once again to the Government that it may wish to avail itself of the derogation provided for under Article 27, paragraph 2, of the Convention. The Committee also notes that the Government has once again not been able to provide statistical information on the number of people covered by compulsory and voluntary insurance which provides a funeral grant as required by Article 27, paragraph 2(c), and hopes the Government will be able to do so in its next report.

According to the Government’s report, sickness benefit corresponds to 70 per cent of the amount of the insured person’s regular wages and income on which social contributions are assessed. The actual percentage of net income varies from one individual to another, and the maximum benefit may correspond to 90 per cent of the insured person’s normal net income. In this connection, the Committee recalls that the conditions required by paragraph 2 of Article 27 for derogation from the provisions of paragraph 1 appear to be met as regards subparagraphs (a) and (b), since Germany has accepted Part IV of the Invalidity, Old-Age and Survivors' Benefits Convention, 1967 (No. 128), and the rate of the sickness benefit should reach that prescribed in subparagraph (b) if net amounts are counted. In these circumstances, the Committee reminds the Government that, in order to avail itself of the derogation envisaged in Article 27, paragraph 2, of the Convention, the majority of the persons protected must be covered by voluntary insurance which is supervised by the public authorities and provides a funeral grant.

II. In its previous comments, the Committee asked the Government to provide information on the following points.

1. Scope. In its previous comments, the Committee requested the Government to provide the statistical information requested under Articles 10 and 19 of the report form and, in case the Government also intended to take into account the protection resulting from a non-compulsory insurance for protected persons, to provide the information requested in the report form under Article 6.

The Committee notes that 92.2 per cent of all employees are covered by the statutory health insurance system in relation to medical care. The Government does not provide any statistical information regarding sickness benefit. However, as persons affiliated with the statutory health insurance system are covered by sickness benefit, it is assumed that the rate of coverage is the same. The Committee requests the Government to continue providing statistical information as requested under Articles 10 and 19 of the report form.

2. Cost sharing in medical costs. Taking into account the entry into force of the First Statutory Health Insurance Reform Act, the Committee asked the Government to provide detailed information on the practical implementation of the reform and its implications for Article 17 of the Convention, particularly in respect of the cost sharing by beneficiaries in medical costs.

According to the Government’s report, the entry into force of the Act to modernize statutory health insurance on 1 January 2004 modified the existing legislation on contributions (cost sharing) and exemptions. Under the new legislation, insured persons of 18 years of age and older are required to pay a “medical practice fee” of 10 euros for “out-patient” treatment which must be paid for the first visit to a doctor without referral in each quarter. In the case of “in-patient” hospital treatment, insured persons of 18 years and above are required to pay a charge of 10 euros per calendar day for a maximum of 28 days per year. In addition, insured persons are required to contribute 10 per cent of certain costs, such as medication and medical care (up to a minimum amount of 5 euros and a maximum of 10 euros, but never more than the cost of the medication). When medication and nursing care are provided at home, the patient’s contribution is 10 per cent and 10 euros per prescription. No contribution is required for children under the age of 18, apart from travel costs. The new legislation establishes limitations on cost sharing. Each insured person is required to bear up to a maximum of 2 per cent of his or her gross annual income of accommodation charges. The limitation for persons who suffer from chronic illness is 1 per cent of their annual gross income in accommodation charges. The Committee notes this information and allegations made by the German Confederation of Trade Unions (GCTU) in this respect. The Committee further notes the Government’s reply to the GCTU allegations, in which it indicates that the new cost-sharing rules are so designed as to avoid hardship for persons with small means, in particular as the cost sharing for recipients of social security and of unemployment benefit II is based on a fictional income of 345 euros in 2006.

The Committee also notes the GCTU’s allegations regarding the failure by the Government to meet its obligations under Article 2, paragraph 3(a), (b) and (c), of the Convention. In this respect, the Committee wishes to point out that Germany has not availed itself of the derogation set out in paragraph 1 of this Article and that paragraph 3(a), (b) and (c) of this Article do not therefore apply to Germany.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

Part IV (Unemployment benefit) of the Convention. (a) Article 20 (in conjunction with Article 69). The Committee refers to comments that it has been making since 1998 in relation to the application of Part IV (Unemployment benefit) of the European Code of Social Security, which contains similar provisions. The Committee considered the conditions governing the suspension of the entitlement to unemployment benefit established by sections 119 and 121 of Book III of the Social Code (SGB III) to be, in certain respects, more restrictive than those derived from the definition of the contingency contained in Article 20 of the Code/Convention, as the suitability of employment offered was no longer assessed in accordance with such generally recognized criteria as skills, qualifications, acquired experience and length of service in the previous occupation of the person concerned. Under the terms of section 121(5), employment shall not be deemed unsuitable merely because it does not involve an occupation for which the worker has been trained or which the worker has exercised. The rules (Durchführungsanweisungen) for the implementation of section 121 emphasize that "this provision does not allow for any special protection of an applicant’s normal occupation. The applicant’s training and skills shall be taken into consideration for the purpose of deciding upon suitability only in so far as they are reflected in the remuneration on which the applicant’s unemployment benefit is based". The Committee pointed out that these provisions may have the effect of depriving unemployed persons of the possibility of protecting their acquired occupation and skills from unsuitable job offers during the initial period of unemployment under the threat of losing their unemployment benefit, as well as undermining the responsibility of employment offices for providing better placement, counselling and vocational training services to enable the unemployed to obtain employment that is suitable for their skills and experience. For these reasons, the Government has been asked to reconsider the situation, taking into account its general responsibility under Articles 70(3) and 71(2) of the Code (Articles 71(3) and 72(2) of the Convention) for the proper administration of employment services and the due provision of unemployment benefit in all cases covered by Article 20 of the Code/Convention during the period fixed by Article 24.

In its thirty-third annual report on the Code in 2004, the Government stated that the placement and integration efforts of the employment agencies are first and foremost aimed at reintegrating unemployed persons into working life in line with their professional qualifications and personal interests. However, if such integration turns out to be impossible, the community of insured persons (who finance the unemployment insurance scheme in Germany by means of their contributions) may expect that an unemployed person also accept other jobs that are offered on the labour market. Any other policy leads to a situation in which unemployment would take precedence over (possible and acceptable) employment and would thus contradict the legally enshrined precedence of placement into employment over the receipt of wage replacement benefits (section 4 of Book III of the Social Code). Accordingly, German employment services have made increased efforts over the last few years to promote the willingness required on the part of unemployed persons to participate and make adjustments in the context of their reintegration into working life, and they have also taken measures to enforce this aim.

The Committee notes this information. It wishes to point out that the principle of precedence of active placement into employment over passive handout of wage replacement benefits is inherent in the definition of the contingency given in Article 20 of the Convention, which arises only in situations of inability to obtain or be placed into suitable employment. The need to coordinate the system of protection against unemployment with the employment policy and the provision of benefits with the work of the placement services is expressly recognized by the international social security law, which requires, in particular, that the methods of providing unemployment benefit should be such as to contribute to the promotion of full employment as a priority objective, while avoiding creating disincentives either to work or to employment creation (Convention No. 168, Articles 2, 7 and 14). The difference between these provisions of the European and international social security standards and the same principle of precedence of placement over benefit handouts, as it is enshrined in German legislation, consists in that the latter admits placement in any possible and acceptable, but not necessarily suitable, employment, while the former provides for a limited period of protection of the acquired occupation and skills of the unemployed from the unsuitable job offers. The Committee also draws attention to the discrepancy between German law, which has formally abolished the time-limited protection of the occupation and skills of the unemployed, and the placement practices of employment agencies, which is still aimed at reintegrating unemployed persons in line with their professional qualifications. In the view of the Committee, this discrepancy may be overcome through better coordination between the provision of the benefit and the placement services on the basis of the internationally recognized criteria for assessing the suitability of employment offered. Taking into account that such coordination falls under the general responsibility of the State for the proper administration of the employment service and the due provision of the unemployment benefit under Articles 71(3) and 72(2) of the Convention, the Committee would like the Federal Employment Agency to be asked to consider issuing a special circular letter to its employment offices reminding them of the country’s obligations under the Convention and the Code to enable unemployed persons to obtain suitable employment and not to apply sanctions for refusing to accept unsuitable job offers at least during the initial period of the unemployment benefit.

(b) Suspension of benefit. Article 69(h). The Committee takes note from the thirty-third annual report on the Code of the measures aimed at further tightening of the conditions of entitlement to, and disqualification from, unemployment benefit. The report indicates that sanctions for violating insurance principles, which are currently set out in various Regulations with different legal consequences, will now be merged into one consistent regulation entailing one sanction in the form of a period of disqualification up to a maximum of 21 weeks. In case of termination of employment by the claimant or because of his failure to report at a set date, such disqualification periods will henceforth be counted as the benefit period. In 2003, the number of disqualification periods imposed under the Regulations on acceptable work (subsection 4 of section 121, Book IV of the Social Code) and Regulations on disqualification periods (subsection 1 of section 144, Book III of the Social Code) has increased by 2.7 times in comparison with 2002 (from 57,000 to 153,000), as the new Regulations have facilitated enforcement procedures for the employment offices. The entry into force of the Regulation on early reporting duty, which provides for cuts in unemployment benefits if future termination of employment is not reported in due time, has resulted in a greater workload for the bodies of appeal because many unemployed persons were appealing against cuts in benefits. The Government highlights that these Regulations have contributed to making unemployed persons aware that, in the future, a higher degree of self-responsibility will be expected from them when it comes to ending unemployment. The burden of proof for having good reason not to act in accordance with this responsibility now belongs to the unemployed person himself/herself, including in cases of dismissal for gross negligence. In accordance with the principle of "giving support and making demands", higher individual responsibility is accompanied by the "individualized placement concept", according to which employment agencies are legally obliged to draw up a comprehensive jobseeker’s profile, identifying his professional and personal characteristics such as knowledge and skills, qualifications, professional experience, whether his/her knowledge and skills are up to date, whether he/she is able and willing to engage in further training, and what concrete labour market assistance is needed in each individual case. The individual placement strategy resulting from the profiling is laid down in a binding integration agreement, which includes offers to be made by the employment agency and activities required from the unemployed person for a certain period of time. A copy of an integration agreement was included in the Government’s thirty-fourth annual report on the Code in 2005, together with the rules for the implementation of section 144 of Book III of the Social Code, the statistics on disqualification periods imposed according to this section, the number of appeals and court actions for the year 2004, and the compilation of selected rulings of the Federal Social Court defining "gross negligence" and "good reason". The Committee will examine this information at its next session when it will have the necessary translations. In the meantime, it would like the Government to continue to indicate any changes in the national legislation and practice related to the conditions governing entitlement to and suspension of unemployment benefit.

Part VI (Employment injury benefit). Article 36, paragraph 3. The Committee notes with satisfaction that, following the recommendation made in its 2003 conclusions on the application by Germany of the European Code of Social Security, the Government has issued a circular to remind the central association of the statutory occupational accident insurance funds responsible for the application of the Regulations on the conversion of an employment injury pension into a lump-sum payment (sections 76 and 78 of Book VII of the Social Code) of the country’s obligations under Article 36(3) of the Code/Convention, which permits such conversion only in cases where the degree of incapacity is slight or the competent authority is satisfied that the lump sum will be properly utilized, in order to prevent victims of employment injuries from falling into poverty after having inadvertently spent their lump-sum payments.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

Part II. Invalidity benefit of the Convention. In its report on the Code, the Government provided calculation of the invalidity pension on the basis of the period between age 17 (commencement of employment) and age 34 (onset of invalidity) including a period of one year during which the employee received unemployment benefit I (ALG I) or unemployment benefit II (ALG II). The Committee notes that in both cases the resulting replacement rate of the invalidity pension satisfies the 50 per cent required by the Convention. The Committee would appreciate it if the Government’s next report would include calculations of the replacement rate of an invalidity pension for a standard beneficiary whose career after the age of 17 included periods of education, self-employment or unemployment until age 30 when he started uninterrupted salaried employment for 15 years and became invalid at age 45. Please also include examples of calculations for the same beneficiary who, before having a stable employment career at the age of 30, spent maximum allowed periods on unemployment benefits I and/or II.

Part III. Old-age benefit. (a) In its thirty-fourth annual report on the European Code of social security, the Government indicated that calculations of old-age pension for a standard beneficiary with 30 years of contributions resulted in a replacement rate of 43 per cent of the reference salary in the old Länder and 42.3 per cent in the new Länder, whereas calculations based on 35 years of contributions gave the replacement rates of 50.1 per cent in the old Länder and 49.3 per cent in the new Länder. According to the Government, it would be unrealistic to base the calculation on a contributory period of 30 years since, under the German pension law, periods of unemployment or training, etc., were credited for pension purposes. In support of this view, the Government referred to a study on pensions newly awarded in 2002, which showed that about 70 per cent of all new male pensioners had more than 40 years of contributory period. In this respect, the Committee would like the Government to provide in its next report detailed information on which additional periods were credited for pension purposes, including invalidity and survivors’ pensions, and how they were valued.

(b) The abovementioned report on the Code indicated that the Act to Secure the Sustainable Financial Basis of the Statutory Pension Insurance (Pension Insurance Stability Act) (Gesetz zur Sicherung der gestzlichen Rentenversicherung - RV-Nachhaltigkeitsgesetz), which entered into force on 1 January 2005, modified the formula for the adjustment of pensions by introducing a sustainability factor, through which the correlation between persons receiving benefits and persons in compulsorily insured employment is taken into account when pension adjustments are made. The adjustment of pensions was also aligned with changes of the sum of gross wages and salaries that are liable to compulsory contributions. The Committee would like the Government to explain the practical effect of the new pension adjustment rules on the application of Article 29 of the Convention and to provide all relevant statistics.

Part IV. Survivor’s benefit. The Committee notes that, as for the invalidity pension, the calculation of the replacement rate of the survivors’ pension given in the report on the Code is based on a contributory period of the breadwinner of 43 years, which comprises a period of uninterrupted employment of 15 years and an additional credited fictitious period of 28 years. The Committee would appreciate it if the Government’s next report on the Convention would provide calculations of the replacement rate of the survivors’ benefit for a standard beneficiary whose career after the age of 17 included periods of education, self-employment or unemployment until age 30 when he started uninterrupted salaried employment for 15 years and died at age 45. Please also include examples of calculations for the same beneficiary who, before having a stable employment career at the age of 30, spent maximum allowed periods on unemployment benefits I and/or II. As regards means-testing of the survivors’ benefit under the new legislation, which takes into account income from property and investment, the Committee notes that most of the newly awarded survivors’ pensions were still governed by the old legislation, which takes into account only work-related income.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

I.  With reference to its previous comments, the Committee wishes to draw the Government’s attention to the following points.

1.  Part II (Medical care), Article 16, paragraphs 2 and 3, of the Convention.  In its previous comments the Committee observed, under section 19 of Part V of the Social Code, if membership in the statutory insurance scheme ceases, entitlement to benefits shall continue for not more than one month after the termination of membership, provided that no gainful activity is exercised. Similar provision is made in section 19(3) for family members, when the family insurance ceases on the death of the insured person. The Committee recalled that under Article 16, paragraph 2, of the Convention, "where a beneficiary ceases to belong to the categories of persons protected, further entitlement to medical care for a case of sickness which started while he belonged to the said categories may be limited to a prescribed period which shall not be less than 26 weeks: Provided that the medical care shall not cease while the beneficiary continues to receive a sickness benefit". Article 16, paragraph 3, further provides that, in such cases, the duration of medical care shall be extended for prescribed diseases recognized as entailing prolonged care. The Committee therefore asked the Government to provide detailed information on the measures taken or envisaged to give full effect to these provisions of the Convention, in respect of formerly insured members who, not having subscribed to voluntary insurance, had no medical protection.

According to the Government’s report, in case the membership of the statutory health insurance ceases, the coverage remains valid as long as the persons concerned are in receipt of maternity benefit or sickness benefit for a sickness which started before the cessation of the membership of the insurance (section 192, paragraph 1(2) of the 5th Book of the Social Code). Besides, the persons concerned have also the possibility to take out voluntary health insurance or be entitled to medical care, which in theory is equivalent to that provided by the statutory insurance scheme, if they draw assistance for their subsistence in accordance with the Federal Assistance Act (sections 37 and 38 of the Federal Public Assistance Act). The Committee notes this information. It further notes that persons in receipt of unemployment benefit continue to be covered by the statutory health insurance (section 186, paragraph 2(a), of the 5th Book of the Social Code). The Committee would like the Government to confirm in its next report that in case the employment contract ceases during the sickness, the person concerned shall, in all other cases covered by paragraphs 2 and 3 of Article 16 of the Convention, continue to be entitled to medical care throughout this contingency, provided this care may be limited to a prescribed period which shall not be less than 26 weeks. Please also indicate how family members are protected in these cases.

2.  Part III (Sickness benefits), Article 27.  In its previous comments the Committee pointed out that section 58 of Part V of the Social Code, under which a funeral grant shall be paid only if the deceased person was insured at 1 January 1989, was not in conformity with paragraph 1 of Article 27 of the Convention. Having pointed out to the Government that it might avail itself of the derogation provided for under paragraph 2 of Article 27 of the Convention, the Committee requested information relating to this provision.

In this connection, the Committee notes from the information supplied by the Government in its report that the conditions required by paragraph 2 of Article 27 for derogation from the provisions of paragraph 1 appear to be met as regards subparagraphs (a) and (b), since Germany has accepted Part IV of the Invalidity, Old‑Age and Survivors’ Benefits Convention, 1967 (No. 128) and the rate of the sickness benefit should reach that prescribed in subparagraph (b) if net amounts are counted. However, the Government states that it is unable to provide statistics on the number of persons covered by voluntary insurance which provides a funeral grant, as required by subparagraph (c) of paragraph 2. The Committee nonetheless notes that, according to the Government’s estimates, the number of people who may be entitled to a funeral grant under the legislation on statutory sickness insurance is still high (61 million, i.e. approximately 85 per cent of insured persons). But this number will necessarily decline since the funeral grant applies only to persons insured at 1 January 1989. In these circumstances, the Committee hopes that the Government will not fail to continue indicating in all its future reports the number of persons covered by insurance - compulsory or voluntary - which provides for a funeral grant.

II.  The Committee also asks the Government to provide information on the following points in its next report.

1.  Scope.  Please provide the statistical information requested under Articles 10 and 19 of the report form. If the Government intends also to take into account the protection resulting from a non‑compulsory insurance for the protected persons, it is asked also to provide the information requested in the report form under Article 6.

2.  Shared medical costs.  The Committee notes the information supplied by the Government under Article 17 of the Convention, and in particular the entry into force of the First Statutory Health Insurance Reform Act (1.NOG). The Government is asked to provide detailed information on the practical implementation of the reform and its implications for Article 17 of the Convention bearing in mind that, according to the new provisions, any increase in contributions other than those connected with adjustments in the health funds’ risk management, will automatically lead to an increase in the beneficiaries’ share in medical costs.

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).

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

Part XIV (Miscellaneous provisions, Article 76, paragraph 1(b)). With reference to its previous comments, the Committee notes the detailed statistical information concerning the scope of coverage of each social security branch, the amount of family benefits and the share of insurance contributions borne by the employees protected, provided in the Addendum to the Government's report. It notes, however, that these statistics concern only the old Länder. The Committee therefore once again hopes that the Government's next report will also include statistics on the new Länder in the manner required by the report form on the Convention.

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

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.

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

The Committee notes the information contained in the Government's report.

Part XIII (Common provisions), Article 69(i), of the Convention, concerning suspension of unemployment benefit. For a certain number of years, following observations made by the German Confederation of Trade Unions (DGB), the Committee has considered whether section 116 of the Federal Employment Promotion Act, as amended in 1986, is consistent with Article 69(i).

Section 116(3) as amended, permits the suspension of unemployment benefit due to workers who have lost their employment as a result of a trade dispute, but who have not participated in the dispute: (a) when the enterprise in which the persons concerned have been employed falls within the territorial and occupational scope of the collective agreement which gave rise to the dispute; and (b) when the enterprise in question does not fall within the territorial scope of the collective agreement but belongs to an occupational sector covered by it. In the latter case, benefits are only suspended if a claim which is the same - but not necessarily identical - in nature and scope to the principal claim giving rise to the dispute has been made and if the results of the dispute will in all probability be endorsed, "in essential respects", by the collective agreement which is not the subject of dispute, but which applies in the territory where the enterprise is located. The Neutrality Committee, composed of employers' and workers' representatives and the President of the Federal Labour Institute, determines whether these conditions for suspension of benefits under section 116 have been met.

In its previous comments, the Committee stressed the importance of the practical application of the amendment to section 116 in assessing compliance with Article 69(i) and requested copies of any relevant decisions of judicial bodies.

In December 1994, the DGB submitted a communication concerning the judgement of the Federal Social Tribunal published 4 October 1994 (No. BSGE, AZ: 7KeAr 1/93) which confirmed a decision of the Neutrality Committee in most respects and found that, in the circumstances of the case, the requirement provided for under section 116(3) of the Employment Promotion Act was met so as to allow the refusal of unemployment benefit in cases of work stoppage due to strike actions in other geographic regions. The DGB alleged that this decision contravenes Article 69(i) and infringed upon the right to strike.

In reply to the comments of the DGB, the Government fully endorsed the finding of the Federal Social Tribunal that section 116 was in compliance with Article 69(i) and was consistent with the principle that the State should not intervene in an industrial dispute by granting benefits to laid-off workers who will probably also benefit from the result achieved by other workers on strike. According to the Government, such intervention would come about if the State were to assume the loss of earnings risk for workers who will probably also benefit from the result achieved by other workers on strike although they are not themselves directly involved in the industrial action.

The Committee has been supplied with copies of the decisions of the Neutrality Committee (1 July 1993), the Federal Social Tribunal (4 October 1994) and the Constitutional Court (BVG, 14 April 1995), concerning section 116 of the BVG Employment Promotion Act, as amended in 1986. The Committee has examined these decisions. It notes that, according to the Federal Social Tribunal and the Constitutional Court, section 116(3)(2) requires that the Neutrality Committee find the following facts: (1) that the workers affected by the work stoppage but not involved in the strike in another geographic region must have formulated claims concerning their collective agreements and be in the process of asserting them; (2) that the principal claim they have asserted or intend to assert is "the same in nature and scope" as the principal claim asserted by the workers on strike; and (3) that "in all probability" the one set of claims will be substantially endorsed in the other. All three elements must exist throughout the duration of the denial of benefit under section 116(3)(2); a change in circumstances eliminating any one element will result in a termination of the application of the Neutrality Committee's decision upon which the Employment Office determines individual claims for benefit in case of work stoppage due to an industrial dispute. The Federal Social Tribunal found that in the case before it, all three elements clearly existed simultaneously for a limited period of time during the work stoppage, and it presented data on the high correlation in recent years in the wages and training allowances in the same wage sector between the geographic areas involved in collective bargaining more or less simultaneously in May 1993. The Federal Social Tribunal found irrelevant the fact that the industrial action in this case was taken in reaction to the employers' withdrawal from the collective agreement of 1991.

The Committee notes in particular that the Federal Social Tribunal considered the principal claim in a strike to be that for which the trade union mobilizes its membership with a view to industrial action, and which has predominantly characterized that action. The principal demands in each geographic sector must be the same in terms of nature (i.e. its objective) and scope (i.e. its extent), without necessarily being identical: according to the Federal Social Tribunal, the legislative intent was to indicate that the word "same" did not imply that the claims were fully equivalent in every detail; however, "same" should be considered in each individual situation to determine the economic importance of the claim. The Federal Social Tribunal emphasized that the term "same" should be interpreted narrowly: "(t)he claim made and the action's principal demands have to be so close to each other that they almost entirely correspond." Although the Federal Social Tribunal considered that the differences in the kind of agreement proposed (company level, sectoral level, etc.) did not have any bearing on the determination of similarity of claims, it stressed that such differences should be scrutinized in connection with the assessment of probability.

Lastly, according to the Federal Social Tribunal, the Neutrality Committee has no flexibility margin or prerogative of evaluation, when it decides whether the result of the dispute in one sector will probably be transferred to the other; and its forecasts are subject to judicial review. The forecast must stand up to a stringent analysis and the conclusions must appear highly probable on the basis of specific information and experience. The Constitutional Court generally affirmed the Federal Social Tribunal's ruling and held that section 116 was consistent with the German Constitution, based on the facts of the case before it.

The Committee recalls that in its previous observations, especially the 1965 observation addressed to Germany, it has discussed at length the meaning of "as a direct result of a work stoppage" contained in Article 69(i). This wording is intended to distinguish between workers who have little or no interest in the outcome of a trade dispute and therefore should not have to bear the risk of such an action, and those who have a substantial interest in the outcome of the trade dispute and therefore may more reasonably be expected to shoulder the burden along with the workers on strike. As the Committee has stated in previous comments, the key issue is whether the trade dispute is likely to influence the claimants' conditions of work. In this respect it considers that the standard of "in all probability" applied in section 116(3)(2)(b) distinguishes adequately between interested and uninterested workers. The Committee also considers that the assessment of whether the claims are the "same in nature and scope" to be a key issue in evaluating compliance of section 116 with Article 69(i). The Committee is aware that the amendment to section 116(3), is likely to affect adversely entitlement to unemployment benefit during industrial action but, based on the Federal Social Trinbunal's findings of fact, it appears that the suspension of benefit in this specific case was not inconsistent with the provisions of the Convention. In this respect, however, the Committee again draws attention to the Federal Social Tribunal's statement that the term "same" must be determined in each individual case, and it would appreciate being kept informed of any future rulings on section 116.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

With reference to its previous comments, the Committee notes with interest the statistical data supplied by the Government in its report covering, among other matters, the level of invalidity, old-age and survivors' benefit, both in the old and the new Länder. In view of the complexity of the question, the Committee has decided to defer examination of it until its next session so that it can take into account the most recent information supplied by the Government in the context of the European Code of Social Security.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

1. Part II (Medical care), Article 16, paragraphs 2 and 3, of the Convention. In its previous comments the Committee observed that, under section 19(2) of Part V of the Social Code, if membership in the statutory insurance scheme ceases, entitlement to benefits shall continue no longer than one month after the termination of membership, provided that no gainful activity is exercised. Similar provision is contained in section 19(3) for family members, when the family insurance ends by death of the insured person. The Committee recalled that under Article 16, paragraph 2, of the Convention, "where a beneficiary ceases to belong to the categories of persons protected, further entitlement to medical care for a case of sickness which started while he belonged to the said categories may be limited to a prescribed period which shall not be less than 26 weeks: Provided that the medical care shall not cease while the beneficiary continues to receive a sickness benefit". The Committee therefore requested the Government to supply detailed information on the measures taken or contemplated to give full effect to this provision of the Convention, as far as formerly insured members were concerned who did not have recourse to voluntary insurance and were not covered by another social security protection providing health care. The Committee also requested the Government to indicate how effect is given to Article 16, paragraph 3, of the Convention, which prescribes that, notwithstanding the provisions of paragraph 2 of the said Article, the duration of medical care shall be extended for prescribed diseases recognized as entailing prolonged care.

In reply, the Government states that section 19(2) of Part V of the Social Code serves to compensate for the difference between the interests of the joint association of statutory sickness insurance funds and the requirement for cover of the insured person who has ceased to be a member, and therefore does not infringe upon the aims of Article 16, paragraph 2, of the Convention, which seeks to prevent that the loss of membership of the group of protected persons entails the immediate loss of the right to medical care benefits. Thus, according to the Government, unemployed persons who forfeit their membership of the group of protected persons, continue to receive health care benefits for as long as they draw unemployment benefits under the Employment Promotion Act, and persons drawing regular assistance for their subsistence in accordance with the Federal Public Assistance Act, can also receive sickness benefits whose nature and scope conform to the benefits of the sickness funds. The Government considers that, together with voluntary insurance, these possibilities are to be seen as alternatives of equal value to the ongoing entitlement to benefits provided in Article 16, paragraph 2, of the Convention for a period of 26 weeks. It adds that, from this legal position, a special provision within the meaning of Article 16, paragraph 3, for prescribed diseases would not be necessary and would also not be in keeping with the system.

The Committee notes this information. It would like to emphasize that Article 16 of the Convention sets out a general principle according to which medical care shall be provided throughout the contingency (paragraph 1). However, with respect to persons who cease to belong to the protected category, it permits a derogation from this principle on conditions expressly stated in paragraphs 2 and 3. In as much as the national legislation has recourse to this authorized derogation, it should strictly abide by the terms of those paragraphs. As regards more particularly persons in receipt of a benefit under the Employment Promotion Act mentioned by the Government, the Committee notes that they are subject to compulsory insurance under section 5(2) of Part V of the Social Code and therefore do not fall into the category of persons covered by Article 16, paragraph 2, of the Convention. In light of the above, the Committee once again expresses the hope that the next report of the Government will indicate the measures taken or contemplated to ensure that the provisions of Article 16, paragraphs 2 and 3, of the Convention, are fully applied in the national legislation and practice with respect to persons who are not covered by the social security protection providing medical care, including under the Federal Public Assistance Act, and who do not contract voluntary insurance providing medical care. In addition, it would like the Government to supply the text of provisions of the Federal Public Assistance Act which provide for medical care.

2. Part III (Sickness benefits), Article 27. In its previous comments the Committee pointed out that section 58 of Part V of the Social Code, under which a funeral grant shall be paid only if the deceased person was insured at 1 January 1989, was not in conformity with paragraph 1 of Article 27 of the Convention. In its reply, the Government states that the condition of being insured as of 1 January 1989 to be entitled to funeral benefit can be considered as a "prescribed condition" within the meaning of Article 27 of the Convention. It also states that the conditions for derogation provided for under paragraph 2(b) and (c) of this Article are satisfied as, in accordance with section 47 of Part V of the Social Code, the sickness benefit amounts to 80 per cent of the normal remuneration of the insured person and there exists a large number of voluntary individual or collective supplementary death benefit insurance schemes.

The Committee notes this information. It recalls that under Article 27 of the Convention, the right to funeral benefit can be made conditional upon the fulfilment of prescribed conditions, for instance a qualifying period. Such conditions, however, shall not be such as to deprive persons who normally belong to the categories of persons protected of the right to benefit, as would be the case under section 58 of Part V of the Social Code in respect of persons who became insured after 1 January 1989. On the other hand, as regards the possibility to make use of the derogation provided for under paragraph 2 of Article 27 of the Convention, the Committee would like the Government to supply in its future reports statistical information on the number of persons covered by voluntary insurance providing a funeral grant in relation to the total number of persons insured with the statutory sickness insurance scheme after 1 January 1989.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

Part XIII (Common provisions), Article 69(i), of the Convention. In its previous comments concerning the suspension of unemployment benefit in the event of trade disputes, the Committee requested the Government to supply information on the manner in which sections 116 and 133, last subsection, of the Federal Employment Promotion Act are applied in practice and to provide copies of any rulings issued by the Neutrality Committee, as well as of any rulings concerning the constitutionality of section 116 of the Act. In this respect the Committee notes the communication, dated 12 December 1994, received from the German Confederation of Trade Unions (DGB) which refers to a judgement of the Federal Social Court of 4 October 1994 concerning the application of section 116 of the above-mentioned Act; according to the DGB, this judgement would have an adverse effect on the application of the Convention. This communication was transmitted by the Office to the Government for observations. In its reply received on 18 January 1995, the Government states that it was not possible to provide information at the present time on the substance of the matter, since the grounds of the judgement of the Federal Social Court are not yet known. The Government adds that as the question of constitutionality of section 116 of the Federal Employment Promotion Act has now been brought before the Constitutional Court, it is unable to indicate when any further information would be available. The Committee takes note of this statement. It hopes that the Government will be able, in its next detailed report, at the latest, to provide full information on the practical application of the aforementioned sections of the Federal Employment Act, including on the matters raised by the DGB, together with copies of the relevant judicial decisions.

Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

1. Part V (Standards to be complied with by periodic payments), Article 26 of the Convention, in relation with Part II (Invalidity benefit), Articles 10 and 11, Part III (Old-age benefit), Articles 17 and 18, and Part IV (Survivors' benefit), Articles 23 and 24. The Committee notes with interest the very detailed statistics supplied by the Government in its report concerning, among other matters, the level of invalidity, old-age and survivors' benefit in both the old and the new Länder. It notes, however, that the Government is continuing to base its calculations on the "individual basis for the calculation of pensions" which formed part of the formula used for the calculation of benefits before the 1992 reform. In order to be in a position to assess fully the manner in which effect is given to the above provisions of the Convention, the Committee would be grateful if the Government would supply with its next report statistics on the level of invalidity, old-age and survivors' benefit in the manner called for in the report form under Titles I to IV of Article 26, comparing the level of benefit (with the addition of the family allowances provided during the contingency) provided to a standard beneficiary with the wage of a skilled manual male employee determined in accordance with paragraph 6 or paragraph 7 of Article 26 (with the addition of the family allowances provided during employment). The Government is asked to base its calculations on (a) levels which are net of taxation and social contributions and (b) gross levels.

2. With regard more particularly to invalidity and survivors' benefit, the Committee notes the information supplied by the Government concerning the substitute periods, within the meaning set out in section 59 of the Sixth Book of the Social Code, and the statistics on the level of invalidity and survivors' benefit in the cases in which the beneficiary or the family breadwinner began to contribute at the age of: (a) 25 years; and (b) 30 years, and when the contingency occurred five years after the commencement of the insurance. The Committee would be grateful if the Government would base its calculations for the above two hypotheses on the net and gross wages of a skilled manual male employee, and not on the "individual basis for the calculation of pensions". It would also be grateful if the Government would supply detailed information on the manner in which the above calculations are computed.

[The Government is asked to report in detail for the period ending 30 June 1994.]

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

Part XIV (Miscellaneous provisions, Article 76, paragraph 1(b). The Committee notes with interest the detailed information and statistics supplied by the Government in its report. It notes, however, that the statistics supplied by the Government mainly concern the former Länder. It therefore hopes that the Government's next report will also include statistics on the new Länder in the form required by the report form on the application of the Convention.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

Part II (Invalidity benefit); Part III (Old-age benefit); Part IV (Survivors' benefit). The Committee notes with interest the very detailed information supplied by the Government in its report and in its report on the application of Convention No. 102. It hopes that the Government's next report will also contain statistical information concerning the new Länder.

Furthermore, in view of the period covered by the report, the Government supplied statistical information on the level of benefits relating to the year 1991 and this information therefore precedes the coming into force on 1 January 1992 of the Act to reform the pension scheme. In order to be fully able to assess the implementation of this reform in relation to the obligations deriving from the Convention, the Committee requests the Government to supply with its next report the statistical information required under the report form for the period 1992.

The Committee would also be grateful to receive details on the following point:

Part V (Standards to be complied with by periodic payments), Article 26, of the Convention (in relation with Part II (Invalidity benefit), Articles 10 and 11, paragraph 5, as well as with Part IV (Survivors' benefit), Articles 23 and 24, paragraph 5). In compiling statistics concerning the level of invalidity and survivors' benefit, the Government states that, taking into account the provisions respecting the supplementary period, 35 years of insurance are generally validated, thereby ensuring the payment of an invalidity pension equivalent to 55.2 per cent of the individual calculatory base and the provision of a survivors' pension equivalent to 49.4 per cent of the above base.

The Committee understands that the Government intends to have recourse to the provisions of Article 11, paragraph 5, and Article 24, paragraph 5. It would therefore be grateful if the Government would supply additional information on the manner in which the substitute periods, within the meaning set out in section 59 of the Sixth Book of the Social Code, are taken into account for the calculation of invalidity and survivors' benefit, particularly when the beneficiary has not contributed for the whole of the period preceding the contingency. It requests it in particular to supply statistics on the level of invalidity and survivors' benefit in the cases in which the beneficiary or the family breadwinner began to contribute at the age of: (a) 25 years; and (b) 30 years, and when the contingency occurred five years after the commencement of the insurance (or, in case (a) at the age of 30 years, and in case (b) at the age of 35 years) and to compare the above benefit with the net and gross wage of a skilled manual male employee.

[The Government is asked to report in detail for the period ending 30 June 1993.]

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

Part XIII (Common provisions), Article 69(i), of the Convention. In its previous comments concerning the suspension of unemployment benefit in the event of trade disputes, the Committee requested the Government to supply information on the manner in which sections 116 and 133, last subsection, of the Federal Employment Promotion Act are applied in practice and to provide copies of any rulings issued by the Neutrality Committee. It also requested the Government to supply any other comments relating to the communication transmitted by the German Confederation of Trade Unions (DGB), dated 19 March 1990. In its reply, the Government states that to its knowledge during the period covered by the report, no case under the above provisions has been reported. It adds that the Neutrality Committee has handed down no rulings in this respect. The Committee notes this information. It requests the Government to continue to supply information in its future reports on the manner in which the above provisions of the Act are applied in practice. It would also be grateful if the Government would supply the text of any ruling issued on the constitutionality of section 116 of the Employment Promotion Act.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

1. Part II (Medical care). (a) Article 16, paragraph 2 of the Convention. The Committee observes that, under section 19(2) of Book V of the Social Code, if membership in the statutory insurance scheme ceases, entitlement to benefits shall continue for no longer than one month after the termination of membership, provided that no gainful activity is exercised. A similar provision is contained in section 19(3) for family members, when the family insurance ends by death of the insured person. The Committee also notes the Government's statement that a formerly insured person, whether insured directly or as a family member, has the opportunity to retain his protection in case of sickness by voluntary insurance. The Committee points out that under Article 16, paragraph 2 of the Convention, "where a beneficiary ceases to belong to the categories of persons protected, further entitlement to medical care for a case of sickness which started while he belonged to the said categories may be limited to a prescribed period which shall not be less than 26 weeks, provided that the medical care shall not cease while the beneficiary continues to receive a sickness benefit". The Committee therefore requests the Government to supply detailed information on the measures taken or contemplated to give full effect to this provision of the Convention, as far as formerly insured members are concerned who did not have recourse to voluntary insurance under section 19 of Book V of the Social Code and are not covered by another social security protection which also provides for health care; it recalls that this was the case under section 183(1) of the former Federal Insurance Code.

(b) Article 16, paragraph 3. The Committee requests the Government to state whether and under which provisions effect is given to Article 16, paragraph 3 of the Convention, which prescribes that notwithstanding the provisions of paragraphs 2 of said Article the duration of medical care shall be extended for prescribed diseases recognised as entailing prolonged care.

2. Part III (Sickness benefits), Article 27. The Committee notes that, under section 58 of Part V of the Social Code, upon the death of an insured person, a funeral grant shall be paid only if the deceased person was insured at 1 January 1989, which is not in conformity with paragraph 1 of Article 27 of the Convention. In so far as the Government wishes to avail itself of the derogation provided for under paragraph 2 of this Article, it is requested to provide detailed information, including statistics, showing that the conditions provided for under Article 27, paragraphs 2(b) and (c), are fulfilled.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

1. The Committee notes the information supplied by the Government in its report, as well as the entry into force on 1 January 1989 of a new codification of the law on the statutory sickness insurance scheme, which was incorporated in the Social Code (Book Five (SGB V)). It also notes with satisfaction from the Government's reply to its previous comments that as a result of a ruling of the federal Constitutional Court, section 49 of Book V of the Social Code provides that the claim to sickness benefit, in so far as it exceeds the other social benefits listed therein, is not suspended. This is in conformity with Article 26 of the Convention (read together with Article 28, paragraph 1(h)).

2. The Committee draws the Government's attention to certain points which it raises in a direct request.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

1. With reference to its previous comments, the Committee notes the information supplied by the Government in its report, particularly concerning Part V (standards to be complied with by periodical payments), in relation to Parts II (Articles 10 and 11), III (Articles 17 and 18) and IV (Articles 23 and 24).

2. The Committee notes the adoption on 18 December 1989 of the Act to reform pensions, the principal provisions of which are to come into force on 1 January 1992. The principal aim of this Act is to deal with the consequences of developments in the demographic structure of the population through a common burden-sharing effort by retirees, contributors and the Federal State. The Committee hopes that, when this reform is implemented, the measures that are adopted will continue to take account of the level of protection prescribed by the Convention. It would be grateful if the Government would supply detailed information, in accordance with the report form adopted by the Governing Body, on the implementation of this legislation in relation to the various Articles of the Convention and, in particular, if it would supply the necessary statistics to determine whether the level of old-age, invalidity and survivors' benefit attains the level required by the Convention. The Committee reserves the right to make a more detailed examination of the Act to reform the pensions scheme when it has at its disposal a translation of the text in English or French.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

Part XIII (Common provisions), Article 69(i) of the Convention. The Committee notes the comments made by the German Confederation of Trade Unions (DGB), dated 19 March 1990, concerning the implementation of Article 69(i) of the Convention. According to the above organisation, section 116 of the federal Employment Promotion Act, as amended in 1986, is not consistent with the Convention. The above communication was brought to the attention of the Government by the International Labour Office on 30 March 1990.

In this connection, the Committee recalls that it commented on the question of the suspension of unemployment benefit in the event of trade disputes in its 1989 observation in which it asked the Government to continue to provide information on the way in which practical effect is given to the provisions of section 116 of the Employment Promotion Act and the last subsection of section 133 of the same Act, as amended by the Act of 1986. It also asked the Government to provide copies of any rulings issued by the Neutrality Committee.

Consequently, the Committee again expresses the hope that the Government will not fail to provide the information requested in its next report, together with any other comments it deems appropriate on the latest communication from the German Trade Union Confederation. It would be grateful if the Government would also provide the text of any rulings on the constitutionality of section 116 of the Employment Promotion Act, as amended.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

1. The Committee takes note of the information supplied by the Government in its report, particularly with regard to the implementation of the law of 11 July 1985 on the reorganisation of survivors' pensions and the recognition of the periods for children's education in the pension insurance scheme, in respect of Part IV of the Convention.

2. With regard to Part V (Standards to be complied with by periodical payments), in relation to Parts II (Articles 10 and 11), III (Articles 17 and 18) and IV (Articles 23 and 24), the Committee notes the statistical information supplied by the Government concerning the level of benefits, in reply to its previous comments. These statistics show that the amount of the invalidity, old-age and survivors' benefits paid to a standard beneficiary would correspond to the level prescribed by the Convention if the personal basis of assessment for pension purposes - which, according to the report, was 32,376 marks for a skilled worker in 1988 - is considered to be "previous earnings" as laid down in Article 26 of the Convention, and taking into account, for the calculation of invalidity and survivors' benefits, the flexibility clauses provided by Article 11, paragraph 5, and Article 24, paragraph 5, of the Convention.

The Committee also takes note of a report on pension adjustments in 1988 from the federal Government to the Council of States, which contains a table (page 77 of the report) concerning developments between 1957 and 1988 in certain factors, including, in particular, the average gross earnings of insured persons, the general basis of assessment for pension purposes and the rate of pensions. It has noted, in particular, that according to the statistics shown in this table, the gross amount of pensions after 45 years of insurance represents 51 per cent of the gross amount of earnings (1988 estimate). It infers from these statistics that an old-age pension, calculated on the basis of a period of 30 years of insurance, in conformity with Article 18, paragraph 1(a), of the Convention, would be equal to 34 per cent of these earnings, whereas, according to the table in the Appendix to Part V of the Convention, the old-age pension for a standard beneficiary should be 45 per cent. In the Committee's opinion, this difference might be due, inter alia, to the fact that over the years the average gross earnings increased by a higher proportion than the general basis of assessment for pension purposes. The Committee would be grateful if the Government would supply with its next report all information liable to contribute to a better appreciation of the situation, in the light of the above-mentioned provisions of the Convention.

3. The Committee takes note of the information supplied by the Government on the application of Article 15, paragraph 3, of the Convention (which provides that retirement age shall be lowered to less than 65 years for persons who have been engaged in arduous or unhealthy work) and, in particular, the coming into effect on 1 January 1989 of the Act on part-time employment for older workers. The Committee hopes that the Government will continue in its future reports to provide information on all progress made in giving fuller effect to Article 15, paragraph 3, referred to above, due regard having been had to the amount of the benefits and the qualifying periods prescribed by Articles 17 and 18.

4. Finally, the Committee takes note of the information supplied by the Government in its eighteenth report on the application of the European Social Security Code as amended by its Protocol, concerning the pension insurance reform which has been submitted to Parliament for examination and adoption. The Committee hopes that any measures adopted following this reform will continue to take account of the level prescribed by the Convention. It would be grateful if the Government in its next report would communicate detailed information on the results of this reform. [The Government is asked to report in detail for the period ending 30 June 1990.]

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

1. The Committee has examined the Government's detailed report and notes with interest the improvements in the social security scheme and particularly the increases in the level of benefits and the new allowances for dependent children. The Committee hopes that the Government will also be able to provide information on the effect given to Part VIII of the Convention (Maternity benefit), which has also been accepted by the Federal Republic of Germany.

2. Part XIII (Common provisions), Article 69(i), of the Convention. With reference to its previous observations concerning section 116 of the Employment Promotion Act and the Regulations issued under this section (which provides for the suspension of unemployment benefit in certain cases where workers who have lost their employment as a result of a trade dispute are not directly implied in the dispute, whereas under the Convention, these benefits may only be suspended if the person concerned has lost his employment as a direct result of a stoppage due to a trade dispute), the Committee notes the Government's explanations on the scope of the amendments made to the above-mentioned legislation by the Act of 15 May 1986 to ensure the neutrality of the Federal Employment Institute (BGBl, Part I, page 721). According to the provisions of the new legislation and the Government's explanations, unemployment benefit due to workers who have lost their employment as a result of a trade dispute, but who are not directly involved in the dispute is suspended: (a) when the enterprise in which the persons concerned have been employed falls within the territorial and occupational scope of the collective agreement which gave rise to the dispute, and (b) when the enterprise in question does not fall within the territorial scope of the collective agreement but belongs to an occupational sector covered by it. In the latter case, benefits are only suspended if a claim which is "similar" - but not necessarily identical - in nature and extent to one of the main claims giving rise to the dispute has been made and if the results of the dispute will in all probability be endorsed, "in essential respects", by the collective agreement that is not the subject of dispute but applies in the territory where the enterprise is located.

According to the information contained in the report and the provisions of new subsections 5 and 6 of section 116 of the Employment Promotion Act, the question whether: (a) the claim of the workers who were not directly involved in the trade dispute in question is similar - but not necessarily identical - in nature and extent to one of the main claims that gave rise to the dispute; and (b) the results of the conflict will in all probability be taken into account "in essential respects" by the collective agreement applying in the territory where the enterprise which employed the workers is situated is determined by a decision of the competent body of the Federal Employment Institute, namely, the Neutrality Committee. This Committee is made up of employers' and workers' representatives who sit on the above Institute's Executive Board, and only issues a ruling after hearing the opinion of the umbrella organisations of the parties to the collective agreement which was the subject of the trade dispute in question. These organisations may also institute proceedings against the ruling before the Federal Social Tribunal (Bundessozialgericht). Furthermore, in the event of a work stoppage, the employers must prove before the Federal Employment Institute that the loss of employment is indeed due to a trade dispute, and their notification must be accompanied by a statement of the views of the representatives of the workers concerned.

The Committee takes due note of the explanations provided in the report. It recalls, however, that this matter has been the subject of comments from workers' organisations, the most recent of which (1988) was submitted to the International Labour Office by the German Trade Union Confederation (DGB) in connection with the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which concerned in particular the amendments made to section 116 of the Act of 1969 by the Act of 1986 concerning the neutrality of the Federal Employment Institute. The Committee therefore requests the Government to continue to provide information in its future reports, on the way in which practical effect is given to the provisions of section 116 of the Employment Promotion Act and the last subsection of section 133 of the same Act, as amended by the Act of 1986 mentioned above. (Please provide also copies of any rulings issued by the Neutrality Committee.)

Direct Request (CEACR) - adopted 1987, published 74th ILC session (1987)

Article 26 of the Convention (in relation with Article 28, paragraph 1(h)). In response to the previous comments of the Committee, the Government states that entitlement to sickness benefit on a whole is suspended in accordance with section 183, paragraph 6 of the Federal Insurance Code even in cases where the sickness benefit exceeds one of the other benefits, which is not in conformity with this provision of the Convention. The Government, however, adds that the Federal Constitutional Court has before it a case relating to the constitutionality of section 183, paragraph 6 of the Federal Insurance Code and that a decision should be given next year. In these circumstances, the Committee requests the Government to communicate the text of the judgement of the Federal Constitutional Court when it has been given.