ECB pension in a German divorce: what is divided and what the ECB pays

Does the family court divide the ECB pension at the divorce?

A German Familiengericht (family court) does not divide the ECB pension at the divorce. The ECB is an institution of the European Union Art. 13 (1) TEU and is not subject to any single state. That makes it a supranational pension provider. A German court cannot reach entitlements with such providers, so the law treats them as not ready for equalization (ausgleichsreif) at the divorce § 19 (2) no. 4 VersAusglG. The ECB’s seat in Frankfurt does not change this.

The two of you settle the ECB pension between yourselves only after the divorce § 19 (4) VersAusglG. That is why the court lists the ECB pension in the reasons for its decision as an entitlement still open § 224 (4) FamFG. The same applies to staff of ECB Banking Supervision, because they too are employed by the ECB.

Is there a pension rights adjustment at all?

The court carries out the Versorgungsausgleich (pension rights adjustment) on its own initiative only under two conditions Art. 17 (4) sentence 1 EGBGB. German divorce law must apply, and the law of a country of which one of you is a national must provide for such an adjustment. If one of you holds a German passport, the second condition is met.

German divorce law usually applies if you both live in Germany Art. 8 (a) Rome III Regulation. An Italian-Spanish couple in Frankfurt is therefore divorced under German law. Even so, the court does not carry out the adjustment on its own initiative, because Italy and Spain, like France, have no such adjustment. The article Under which law are we divorced: German or foreign? explains how the law governing the divorce is determined.

On application, the court carries out the adjustment if one of you acquired an entitlement with a German pension provider during the marriage Art. 17 (4) sentence 2 EGBGB. Such an entitlement arises, for example, if one of you worked for a German employer and paid into the German statutory pension insurance. In addition, the adjustment must not affect either of you inequitably. The court looks at the financial circumstances of both of you over the whole marriage. If only your spouse works at the ECB, read Spouse with an EU pension: is your German pension still shared?

Does the ECB pension itself qualify for the application, because the ECB is based in Frankfurt? As far as we can see, no court has decided this yet. The explanatory memorandum to the legislation points against it: what matters there is whether a German court can reach the entitlement BT-Drs. 16/10144, p. 113. No German court can reach the ECB pension.

How you receive your share later

If your former spouse works at the ECB, they pay you your share from the marriage as a monthly equalization pension. Payments start once your former spouse has retired and you yourself draw a pension or have reached the standard retirement age § 20 (1), (2) VersAusglG.

The ECB does not pay the equalization pension to you, because it pays only those persons to whom its own rules give a claim Art. 15 (e) Annex IIIa. These rules also make no provision for an assignment by which your former spouse could transfer their pension claim to you.

Instead of waiting for the pension, you can demand a lump-sum settlement: your former spouse then pays an amount into a pension plan for you § 23 VersAusglG. This applies only if the payment is reasonable for them.

Which pension plans the ECB has

The ECB has two pension plans, the earlier one under Annex III and the current one under Annex IIIa to the ECB Conditions of Employment. Staff who joined on or after June 1, 2009 belong only to the current plan. There, each year of service earns a pension of 2 percent of revalued pay Art. 3 Appendix 1 Annex IIIa. There is also an account for voluntary contributions. Together, the pension and the voluntary account may not exceed 70 percent of final basic salary Art. 12 (a) Annex IIIa. The normal retirement age is 65.

Staff who joined earlier generally hold entitlements in the earlier plan for their service up to May 2009, and in the current plan for the period after that Art. 2 (2), Art. 3 (1) Decision ECB/2009/NP7. Both parts count for the equalization after the divorce.

Each year, the ECB benefit statement shows the pensionable years of service, the projected pension and the balance of the voluntary account Art. 34 (b) Annex IIIa. If the ECB pays out the voluntary account as a lump sum, it may fall into the Zugewinnausgleich (equalization of accrued gains) instead of the Versorgungsausgleich (pension rights adjustment) § 2 (2) no. 3 VersAusglG.

Transferred German entitlements become ECB entitlements

If one of you has transferred German pension entitlements to the ECB, they are part of the ECB pension, and the court no longer divides them at the divorce. Declare any transfer in the proceedings.

The ECB takes in entitlements from other schemes only if it has concluded an agreement or made other arrangements for this purpose. It then converts them into pensionable service Art. 8 (a), (b) Annex IIIa. Without such an arrangement, staff have no right to a transfer. The transfer rule in the Staff Regulations for EU officials does not apply to them either CJEU, judgment of December 22, 2022, C-404/21. An agreement with Germany dates from 2007 and was concluded for the earlier plan BGBl. 2007 II p. 1690. If you joined later, ask the ECB whether it also covers you.

What the ECB pays divorced spouses

If your former spouse dies, the ECB pays you part of the survivor’s pension, provided three conditions are met at the time of death Art. 8 (a) Appendix 1 Annex IIIa:

• You have not remarried and do not live in a partnership recognized by the ECB.
• Your former spouse owed you maintenance, set by a final court decision or by a formally registered agreement in force.
• That decision or agreement provides neither for a payment to you from your former spouse’s ECB entitlements nor for any comparable right.

A provision with the same structure governs the earlier plan Art. 13.3a Annex III. Both provisions refer to the death of a member of the pension plan and do not expressly mention pensioners Art. 8 (a) Appendix 1 Annex IIIa, Art. 13.3a (a) Annex III. So have the ECB confirm that it also pays if your former spouse dies after retiring.

The survivor’s pension amounts to 60 percent of your former spouse’s pension. If your former spouse dies in service, the ECB projects the pension to age 65 Art. 4 to 7 Appendix 1 Annex IIIa. Your part depends on the years of marriage during your former spouse’s employment at the ECB, measured against their total actual service there Art. 8 (b) Appendix 1 Annex IIIa. If you were married for ten of twenty years of service, you receive half of the survivor’s pension. Your part never exceeds the maintenance that was set, however, and it ends when the maintenance would have ended Art. 8 (c) Appendix 1 Annex IIIa.

If your former spouse had remarried, the ECB reduces the survivor’s pension of the widow or widower by your part Art. 8 (d) Appendix 1 Annex IIIa. Apply to the ECB within one year of the death; otherwise, it pays only from the month after your application Art. 28 (c) Annex IIIa.

The third condition is decisive for your agreement

The ECB pays you nothing after your former spouse’s death if the maintenance arrangement also provides for a payment from the ECB pension, such as an equalization pension. This mainly affects a Scheidungsfolgenvereinbarung (divorce settlement agreement) that deals with maintenance and the Versorgungsausgleich (pension rights adjustment) in one document.

Whether the ECB also pays if an agreement does not settle the adjustment but leaves it open for later is not clear. Before you sign, have the ECB confirm that it pays in that case. Our page on divorce for ECB and EU staff sets out the options for an agreement and what else remains after a death.

The next step

Attorney Mieke Karcher handles the Versorgungsausgleich (pension rights adjustment) at our office. If an agreement involving assets is on the table, attorney Dietrich Karcher joins her. The first consultation costs up to €190 plus VAT, at most €226.10 in total. If we take on your case, this fee is credited toward our further fees. The Costs page shows how the further fees are calculated. Our page on the pension rights adjustment explains how the court divides other pension entitlements.