– Even with PSV protection, the GGF is in danger of completely losing its contractually and legally protected pension commitment (direct commitment) –

In principle, the managing partner (GGF) of a GmbH is subject to the personal protection of the Works Pension Act (BetrAVG), if he is considered as not controlling in the labour law sense and thus as an employee according to the law of employment. § Section 17, paragraph. 1 BetrAVG is to be considered.

As a rule, the GGF is considered to be dominant if either it alone holds more than 50% of the company shares or several GGFs together hold more than 50% of the shares. In the latter case, all GGFs are regarded as dominant in the sense of labour law.

The classification of the GGF as an employee within the meaning of the BetrAVG means that in the event of the insolvency of its employer (i.e. the GmbH), the Pensionssicherungsverein (PSVaG) is liable for all pension benefits due and legally vested entitlements (Section 7 (1) BetrAVG). The PSVaG is liable for pension obligations even if the GmbH has unlawfully failed to pay contributions despite a legal obligation to be a member of the PSVaG.

However, the obligation of the PSVaG to enter into insolvency proceedings has the consequence that claims or expectancies of the beneficiary against the employer for benefits under the company pension scheme, which constitute the claim against the insolvency insurance institution, are transferred to the insolvency insurance institution in the event of insolvency proceedings when such proceedings are opened, if the latter is entitled to such benefits in accordance with § 9 para. 1, sentence 1 of the BetrAVG notifies the beneficiary of the claims or expectancies to which he is entitled (section 9 (2), sentence 1 of the BetrAVG). This is a typical case of cessio legis.

The consequences of the legal transfer of claims to the PSVaG are felt by the GGF at the latest when the insolvency administrator sets off claims of the insolvent GmbH against the GGF. documents, namely the current pension payments were previously still subject to the protection against seizure provided by § 850 et seq. ZPO with the consequence that it was not possible to offset against them on the basis of § 394 BGB, this offsetting prohibition no longer applies when the pension benefits protected against seizure are transferred to a third party (in this case the PSVaG as the carrier of the insolvency insurance).

The implications of this for the CDF’s claims against the PSVaG are set out in the General Insurance Conditions for Insolvency Insurance of Occupational Pensions (AIB). According to § 4 paragraph. 5 AIB, in order to determine the entitlement to the pension benefit, claims are deducted which the employer was entitled to deduct from the GGF on the basis of the existing situation of offsetting.

The pension benefit of the PSVaG is reduced accordingly. If the insolvency administrator asserts a claim against the GGF and declares the set-off, the risk of litigation turns to the detriment of the GGF. With regard to the assertion of his pension claims, which were transferred to the PSVaG by way of cessio legis, there are problems with the authority to conduct proceedings (§ 51 ZPO). The GGF will probably have to assert its claim against the PSVaG through legal action. The PSVaG must then in turn consider announcing the dispute to the insolvent GmbH or even the insolvency administrator.

With the abolition of the prohibition of set-off, the GGF even runs the risk, depending on the extent of the alleged counterclaim, of not even being able to enjoy the unseizable minimum subsistence level of its pension payments. Against this background, it may be advisable for the GGF to review the structure of its occupational pension scheme. There are alternative options for transferring pension entitlements to another pension provider (Section 4 (4) BetrAVG). In any case, the GGF should not without exception rely on an allegedly legally insolvency-protected pension commitment.

by Dr. Johannes Fiala and Rüdiger Wilhelm Lohkamp

by courtesy of

www.experten.de (published on 13.10.2005)