Don’t pay too much

The Federal Social Court (BSG, ruling of 10.10.2017, Ref. B 12 KR 2/16) decided that no health insurance contributions are owed on benefits from a voluntary supplementary occupational disability insurance and/or private pension insurance.

In the case decided, the plaintiff has been drawing a BU pension since 2008. All of a sudden, sometime in 2011, the “Versorgungswerk” began to withhold, report to the GKV and transfer contributions to the pension payments of pensioners who are compulsorily insured in the statutory health insurance (GKV).

This pension scheme, a limited liability company registered with the Commercial Register, does not appear to have a licence from the Chamber of Industry and Commerce for an activity as an insurance intermediary, nor does it appear to have a licence from the Federal Financial Supervisory Authority for its money transfer or collection services. The reasons for the judgement are revealing, because the “Versorgungswerk” (pension scheme) that was enclosed could not or would not explain to the court what it actually is.


Private pensions are non-contributory

The SPA correctly classified the payment of private pensions (including those in the event of occupational disability) for those compulsorily insured under the statutory health insurance scheme as non-contributory. Neither is it a statutory pension scheme for certain occupational groups. It is still a matter of company pension schemes, because (as in the case of direct insurance) it is precisely here that the policyholder (UN) is not the employer, but the employees themselves and other groups. There is also a lack of sufficient reference to the employment relationship.

The benefits were initially still to be classified by the SHI system, then by the SHI Objection Committee, and also by the Social Court (lower instance) as so-called pension benefits according to § 229 Social Code Book V, i.e. with reference to the previous employment relationship. The Federal Social Court has now issued a clear rejection. It did not identify any institution for occupational pension schemes in the case of the Press Pension Fund, but simply “organised group tariffs through an insurance consortium”.

The contributions were paid from net income after social security contributions. Therefore, a so-called double contribution was initially made. This is not already always inadmissible, but can happen legally.


Double contribution generally permissible

In the specific case of the press pension scheme, however, it was unlawful, as the BSG found. It can only be assumed that a larger proportion of the double contributions will also turn out to be unlawful in other respects on closer examination. It is highly questionable whether the circumstances of the concrete individual case have been examined and discussed so intensively up to the Constitutional Court in the case of contrary rulings.

The SPA can only speculate as to whether the pension fund will ultimately be an outsourced secretariat with a paying agent for insurers (VR), or whether it will also be a collection agency, or whether it will itself be an insurance agent. This company should not be confused with a pension fund for the liberal professions or a board of directors, nor with a pension fund. At the UN, the question will arise whether the unjustified withholding and payment of partial pension benefits to the SHI system could also be a reason for terminating the contractual relationship without notice. The case law will provide clarity in this respect in the future.

In principle, an insurer can make no difference to whom it has to pay. The safest way here is to pay less to the UN in case of doubt and to transfer the contributions to the health insurance fund. It is then up to the individual insured person to decide whether to take action against it and obtain a judgement favourable to him in the courts of law. The BoD is then also satisfied with the legal clarity that has now been achieved. For many of them, however, the statute of limitations has now come into effect – the contributions paid out illegally in the end remain largely lost.


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


by courtesy of (published in issue 23, June 2018)

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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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