No garnishment protection

Published on 14.09.2008

The Federal Court of Justice (BGH) decided in its ruling of 15.11.2007 (Ref. IX ZB 89/05) that private insurance pensions (e.g. accident or occupational disability pensions) or pension pensions (so-called private old-age provision) of former freelancers or self-employed persons do not enjoy any attachment protection. This is also the case for self-employed persons and freelancers who relied on the “fairy tale” that their company pension scheme was protected from the access of the insolvency administrator or from creditors by pledging it. The BGH expressly allows the insolvency administrator to collect the reinsurance policy – despite effective pledging and vesting (Case IX ZR 138/04). In principle, therefore, only pensions and retirement pensions are covered by attachment protection. This is owed by the employer or an employer. Only then can the garnishment-free amount of around EUR 900 in the case of single persons or less than EUR 1 400 in the case of married persons come into play. As far as no pension payments or pension claims are concerned, there is “no room for an attachment protection of pensions from the outset”. The BGH clarifies that only employees and civil servants who have established an old-age provision under insurance law for themselves or their dependants can also be granted enforcement protection for this. This refers exclusively to private pensions which replace a retirement pension or a survivor’s pension, i.e. insurance benefits which are “established on the occasion of leaving a service or employment relationship”. Therefore, continuing pensions of freelancers, self-employed persons, or persons who have not worked are not protected. Trying to move assets to a safe haven at the last minute when insolvency is imminent is usually too late. That is why those affected must arrange their own assets and provisions in good time. Attorney Dr. Johannes Fiala, Munich
(VDL Journal 3/2008, 32)
Courtesy of www.vdl.de.