BGH ruling calls into question insolvency security of supplementary pension scheme

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The state allows up to 20,000 euros per person and assessment year to be partially deducted as special expenses for tax purposes in the case of private old-age provision through basic pension contracts. The prerequisite for this is, for example, that an exclusion of realisation is contractually agreed. This is intended to guarantee the insolvency security of the supplementary pension. A new BGH ruling sees things differently. Red.

Cancellation, mortgaging, capitalisation, assignment, inheritance or pledging are contractually excluded under the law. And only when you retire at 62, or exceptionally earlier in the case of occupational disability, will a lifelong pension be paid out of the accumulated capital.

The insurers claim, however, that the contractual exclusion of realisation also prohibits the creditor from realising the saved capital by termination – hence the capital of the Rürup pension is insolvency-proof before the start of the pension. Only then could the Rüruprente due be seized like earned income. This sales argument was so important to the insurers that they therefore turned a blind eye to the truth.


Attachability despite exclusion of realisation

The declaration of the insolvency administrator not to enter into the contract means its termination. Thus, the Federal Court of Justice (BGH), ruling of 1 December 2011, ref.: IX ZR 79/11, has decided that the contractual exclusion of realisation, which is always sought by insurers, precisely does not exclude attachability: Consequently, basic pension insurance policies (also known as Rüruprente) do not inherently belong to the seizure-protected insurance contracts.


Limited security

Rüruprenten contracts are seizure-proof in the accumulation phase within certain limits only if, by way of exception, they simultaneously meet all the requirements of the so-called seizure-protected old-age provision pursuant to § 851 c of the Code of Civil Procedure (ZPO).
However, this too offers only limited protection, above which the saved capital can be seized in accordance with the Code of Civil Procedure even before the start of the pension – and these limits are far below the tax-privileged contributions in Rürup contracts. This applies in particular to the Rürup contracts that are often sold with the maximum tax-allowable inclusion of an occupational disability pension.
They are not protected against seizure because the BU pensions, which are then far higher than the insured old-age pension, contradict the requirements for a limited seizure-protected old-age pension pursuant to § 851 c ZPO, especially since they do not allow a higher BU pension than the later old-age pension.


realisation by creditors

The insurers derive the attachment protection for Rürup contracts from the contractual prohibition of realisation, to which the creditor or insolvency administrator is allegedly also bound. This consideration, however, is mistaken, as the BGH states. Otherwise, in the case of old-age provision that is expressly only protected to a limited extent against seizure in accordance with § 851 c ZPO, there would even be completely unlimited protection against seizure simply because of the exclusion of realisation, which is something that the legislator did not want and is not allowed to introduce under constitutional law because of the protection of the creditor’s property.


No security in the case of imputation of social benefits

In fact, the exclusion of realisation within narrow limits serves to ensure that the pension saver really only receives his capital as a lifelong pension and does not consume it beforehand. But if the state would have to pay Hartz IV or other social benefits, if necessary also legal aid, it can demand the prior consumption of the Rürup capital by extraordinary termination, as expressly stated in the explanatory memorandum to the law on seizure-protected old-age provision. As stated there, an extraordinary right of termination cannot be excluded in special circumstances such as the denial of Hartz IV benefits because of the Rürup capital, even in the case of a contractual ordinary prohibition of termination.


Even Riester contracts are not seizure-proof

In the case of Riester contracts, nothing is protected with regard to overpayments (non-tax-subsidised part) in the savings phase. Of course, one can also speak of attachment protection in the case of only limited attachment protection, because the term does not mean complete unlimited attachment protection. Unfortunately, the term is often confused with this until the rude awakening comes. The BGH speaks of pensions that are publicly subsidised (by means of tax allowances) (i.e. § 851 d ZPO).

However, according to the definition of the Retirement Provision Certification Act (AltZertG), this only refers to the Riester pension, even if many insurers would like to add the Rürup or basic pension. According to this, Rürup is not considered to be “tax-supported”, but only premiums are partially deductible here as a special expense. The church is not “publicly supported” by the fact that the church tax is deductible as a special expense.


Creditors can seize and cancel paid-in capital

The BGH ruling thus confirms, by not naming the Rürup pension among the seizure-protected insurance contracts and by denying any seizure protection by the legislature at all before 2007 (and thus at the time of the introduction of the Rürup or basic pension), that this is initially completely seizable in the savings phase. The protection against seizure within the respective limits also applies only to the extent that it simultaneously fulfils all the requirements of § 851 c ZPO.

According to the BGH, the legislator had not even thought of attachment protection at the time when the Rürup pension was introduced. The BGH emphasises that private life insurance policies can be enforced unless they are subject to special attachment protection provisions such as § 850 b I no. 4 ZPO, § 85 0 c II ZPO. Insurance policies only in the event of death, with an insured sum not exceeding EUR 3 579 (typical death benefit insurance policies), are protected against seizure via § 850 b ZPO.


Exception: Relief of social assistance and funerals

In the case of insurance policies for private old-age provision, Section 851 c of the Code of Civil Procedure provides complete protection for a cover capital which can regularly be used to build up an old-age pension of a maximum of only around EUR 1 0 0 0 per month. At most, the capital required for this at the start of the pension remains exempt from seizure, for younger people in stages considerably less. The higher courts have repeatedly emphasised that every German citizen, especially the self-employed, is free to pay into the German Pension Insurance Scheme (voluntarily) or, for example, into a pension fund if the statutes offer protection against seizure during the payment phase.


Alternative solutions – for example from abroad

Nevertheless, insolvency administrators and/or creditors can also access it in the payout phase, insofar as the garnishment-free subsistence minimum of all income (added together) is exceeded – if necessary, the not much higher limits for earned income also apply. Moreover, everyone is free to look for solutions that promise protection against the loss of pension benefits through enforcement and insolvency, both at home and abroad. However, the typical basic or Rürup pension is certainly not one of such solutions for small and medium-sized enterprises, even if insurance brokers do not tire of ignoring the legal situation and the BGH.


by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm

published in Wealth & Taxes, 07.2012)

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Dr. Johannes Fiala Dr. Johannes Fiala

Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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