– How compulsory contributions and publicity of data are used for self-promotion -.
Obligation to disclose the list of members
The Federal Court of Justice (BGH) ordered the Pensions-Sicherungs-Verein auf Gegenseitigkeit (PSVaG) to disclose the list of its approximately 92,500 members (judgment of 23 April 2013, Case No. II ZR 161/11). Sufficient for the justified interest of an employer who pays compulsory contributions to the PSVaG for the insolvency protection of the company pension scheme (bAV) as a member are the – possibly only pretended – intention of an election campaign among the other members in order to be elected to the supervisory board as well as the exercise of statutory rights. The fact that they can then also be used for other advertising purposes and passed on to prospective addressees can hardly be prevented.
Corporate privacy option: Compulsory contribution without compulsory membership
No employer is forced to become a member of the PSVaG at the same time as declaring a company’s occupational pension scheme subject to contributions, as membership can be revoked at any time – which does not, however, prevent the annual compulsory contribution of up to more than 1% of the occupational pension provisions.
Employers can counteract the increased sending of advertising by objecting to their own membership in the PSVaG from the outset or at a later date, or by terminating it at any time. This is the only way to keep their data truly secret. However, explicit confirmation should be obtained from the PSVaG that it has been ensured that the company will now no longer be named on a list of members upon request.
No data protection vis-à-vis insurance distributors, brokers and agents
The current list of members must be given out if there is a justified interest – the claim to want to campaign for an election to an association body is sufficient for this. For example, an insurance company, an insurance broker or an insurance agent could receive the list and ultimately also use it for other advertising purposes or pass it on to interested parties – his own membership in the PSVaG is sufficient for this. This facilitates advertising for intermediaries who want to sell reinsurance and other models – but personnel and other consultants and service providers are also potential buyers of such addresses. It would be sufficient for an insurance intermediary to become a member of the PSVaG by merely making a pension commitment to a single employee, reporting this to the PSVaG and not objecting to automatic membership from the outset.
Claims for information in the case of residential property, tax saving model, closed participation
Condominium owners can also demand a list of co-owners including postal addresses from the property manager of the condominium owners’ association (BGH, judgement of 07.12.1995, file no. III ZR 81/95; AG Rostock, judgement of 23.05.2008, file no. 54 C 16/07). Likewise, public shareholders of a BGB partnership or a limited partnership interest as a tax-saving model can demand the list of co-partners (BGH, judgment of 21.09.2009, file no. II ZR 264/08; of 11.01.2011, file no. II ZR 187/09), and this even if instead of them there is a trustee in the commercial register who holds the closed investment (BGH, judgment of 05.02.2013, file no. II ZR 134/11). So-called victim advocates use this and the inspection of court files for professional client acquisition – only occasionally followed by a home visit by investigators at the behest of the data protection authority.
Insolvency protection of the PSVaG even without payment of contributions
The PSVaG’s benefits to the employee are guaranteed even if the employer has unlawfully failed to pay contributions to the PSVaG. It is not uncommon for personnel departments to overlook the fact that there is an obligation to pay contributions to the PSVaG. Failure to report may result in a fine.
Up to more than 50% occupational pension losses in the event of company insolvency despite PSVaG protection
Statistically, the insolvency risk amounts to 1% p.a. – after 33 years, therefore, every third employee has experienced an insolvency of his employer. Employees and employers hope that in the event of insolvency the occupational pension scheme will be secured by the PSVaG without any disadvantages. However, this often proves to be a serious mistake, because as soon as the security event occurs, the employees often no longer receive any surpluses or the status of their benefits is frozen on the day of insolvency. Works councils too seldom check whether the occupational pension scheme is designed in such a way that losses in the event of insolvency are really safely avoided.
Insolvency protection without contribution to PSVaG
No employer is forced to structure the company pension scheme according to the statutory types of the German Company Pensions Act (BetrAVG) in order to trigger an obligation to pay contributions to the PSVaG in case of doubt. Nor is any employer obliged to choose the typical types of commitment as suggested by the sample forms of the financial houses, because these regularly lead the employer into a liability for the fulfilment of the occupational pension commitment – especially if the investments do not develop as predicted by the broker or adviser in the past, or the commissions and administrative costs are too high.
The company pension scheme can also be organised, for example, via a foundation set up by the employer. The employer can also use it to promise himself a retirement pension. If the foundation is solely liable, the commitment does not even fall under the BetrAVG.
This type of pension can be reserved for very loyal employees who remain with the employer until the onset of occupational disability or until the start of the old-age pension, i.e. with forfeitability in the event of termination until then. This results in a high binding effect and is also very inexpensive with regard to all terminators, whereas the vesting period of the BetrAVG is now even to be reduced from 5 to 3 years due to EU mobility.
As an employer, you can save yourself the contribution to the PSVaG completely, as well as any liability of your own in addition to the foundation. Even in the event of a company’s insolvency, this company is only affected by its commitments to the extent that it invests in the company and does not have any collateral pledged against it.
This also offers some tax advantages, can contribute economically to the financing of the company and can even be combined with preferential forms of employee share ownership.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
by courtesy of
http://www.handwerke.de (Issue 11-12/2013)
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About the author
Dr. Johannes FialaPhD, MBA, MM
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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