– This leads to further legal disputes about the “correct” determination of contributions –
The Federal Constitutional Court (BVerfG, decisions of 27.06.2018, ref. 1 BvR 100/15, 1 BvR 249/15) decided that benefits from a pension fund (PK) – which are based on contributions made privately by the employee – are not subject to any obligation to make contributions to the statutory health insurance (GKV). This applies accordingly if an employee has continued to save privately for his direct insurance (DV) after leaving the employer.
Illegal retention and illegal payment of SHI contributions by the PK
Nevertheless, there are PFs that have so far neither reclaimed from the SHI system nor repaid to the company pensioner the overpaid contributions to the SHI system, and have even continued to unlawfully withhold the full amount and pay it out, including on the partly privately financed PF old-age pensions.
The decisions of the BVerfG are binding on the courts and the administration – the PK concerned do not prevent them from making false reports to the SHI system. Just as any employer could make inaccurate reports; the Mafia, for example, simply deregisters employees with the statutory health insurance, continues to employ them – the statutory health insurance then asks the employee to go to the labour court first – and pay the statutory health insurance contributions out of his own pocket; and sometimes months later tax investigation or customs are called in.
Such illegally operating PFs simply did not create the necessary reporting corrections. It is wrongly said that one has to agree on a procedure with the GKV. As long as you don’t know how to do it right, you carry on as before – you can’t even submit a report. It’s like when the ghost driver on the motorway says to himself: “Right-hand drive – speed limit 130 – no turning and no stopping!
In fact, it is by no means clear from an actuarial point of view how this would be calculated. It is possible that due to a lack of data and the actuarial complexity of some pension funds, it is not possible to calculate exactly. Any viable proposal would be open to attack. The staff may want to be classified as laymen in pinstripes. Or as highly competent, but not willing to take responsibility for a viable “quick and dirty” solution, whose consequential problems can be dealt with later in individual cases – for example, as in the case of compliance with engine limits by engineers using diesel manipulation?
Company pensioners with benefits from an IT system have an easier time of it, even if some insurers may need up to two years to provide a comprehensible calculation of the partial pension amount that is to come from privately paid contributions.
Inactivity of the PF despite the known reporting and correction procedure to the SHI
Why should the SHI system discuss a legally regulated procedure? She can simply say that corrected notifications of contributions must be made. What is correct must be considered by the PF in order to fulfil its legal obligations. Later, during a social security audit, the health insurance company can object to this. For the time being, the sickness class accepts the contributions due to excessive reporting and cannot do otherwise.
In the meantime, claims for reimbursement of contributions by the PF to the SHI for periods prior to 2014 have become statute-barred. The last four previous years and the current year shall not be time-barred. Incorrectly paid and declared contributions are now successively time-barred for further years. From a PF point of view, what are the arguments against declaring yourself incapable of producing the corrected declarations? Then the statute of limitations comes into effect. At best, this may initially prove to be the most sensible solution.
Better perhaps from the point of view of the person responsible than to report too few errors. Just as many a captain escaped a penalty in the next port and a reprimand from his shipping company for landing stowaways by having them thrown overboard on the open sea, where the only thing to be feared is the jurisdiction of the country under whose flag his ship sails.
Claims for damages by PK pensioners
The PF pensioner would now have to file a class action against the provider of his occupational pension scheme, i.e. the PF. The first step would be to sue for information – so that the PF would present a comprehensible calculation of the pension division into company and private saved pension shares. The plaintiff then needs an actuary as a private expert to check whether the calculation attempted by the PF is correct or absurd – the cost of any calculation found to be incorrect will allow the claim for damages against the PF to be increased later.
In the last stage, the pensioner will then calculate the amount of the additional payment, and future omission of unlawful misreporting against the pensioner. of the PKV, as well as compensation for damages.
The reduction in the individual pension instalments is regularly subject to a limitation period of three years, calculated from the end of the year of the underpayment of the pension concerned. If the pensioner was not guilty of gross negligence, the claim for subsequent payment of the illegal reductions shall become time-barred to the day after 10 years at the latest, §§ 195 ff. BGB.
State intervention and obligation of former employers to take responsibility
At the latest when the Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht, Bafin) deals with the question of whether the suitability of the PF’s management has become so questionable that one must proceed to dismiss it – or if a public prosecutor’s office (StA) investigates for example for embezzlement because of the great damage and the large number of people affected, there will be movement.
Finally, it should also be remembered that the SHI system also has duties of education, information and advice towards the pensioner as its member, §§ 13-15 SGB I. This could lead, for example, to the statutory health insurance scheme taking sovereign coercive measures against the Pension Fund in response to a suggestion or a request to force the correction of false reports. It is possible that the correction will also be initiated in social insurance by the Verification Service of the German Pension Insurance (DRV) by way of administrative assistance. As soon as the SHI system is acting in bad faith, it would have to act ex officio, because otherwise it would expose itself to possible own at least secondary liability for damages by way of special claims for damages including so-called “restoration” as official liability. The SHI system will then presumably coordinate with the StA, which of the two will then appoint an actuary as an expert.
The employee could also consider turning to his former employer. All claims against the employer arising from the so-called common law expire after 30 years in accordance with § 18a of the Company Pension Act (BetrAVG). Perhaps the employer himself is a member of the PF, and could intervene, for example because of his duty of care and loyalty. Or the employer considers whether and how he could reverse all pension contracts with the PF for his (ex-)employees.
It is possible that the PF benefit has always been too low anyway, compared to the content of the employer’s promise. Even then – and even before the PF reduces the benefits due to mismanagement of investments or miscalculations – the employer is obliged to pay. An actuary will be able to calculate the magnitude mathematically.
The Pensionssicherungsverein (PSV aG) does not legally intervene here in the event of employer insolvency. However, it may be that in the event of reductions in benefits from the PF in the future he will have to take action in this respect in accordance with Art. 8 of Directive 2008/94/EC (BAG, decision dated February 20, 2018, Case No. 3 AZR 142/16).
Only a part of the PF is a member of the Protektor Lebensversicherungs-AG, which assumes the function of a rescue company in the event of the bankruptcy of the PF. In case of doubt, the employer is liable, even if the employer subsequently becomes insolvent. Employers often do not know this.
Waiting and drinking tea as the best pragmatic solution
It has been shown time and again that even with intensive information in the media, perhaps one in a hundred affected persons will ultimately file their claims over the years, and even fewer will go to court. Only when a supreme court has ruled in favour of the case does one know how one should have acted correctly in the case in question – this can take as long as two decades – enough for a large part of the case to become time-barred or for those affected to be eaten by the worms. Only seldom does it take 500 years, as it did until it was discovered that Giordano Bruno should not have been put on the stake.
Until then, the path of least risk is more likely to be followed: The complaints of individual affected persons can be met with composure, especially as they help to ensure that the civil courts interpret unclear legal provisions and ultimately create clarity, at least in part. Insufficient payment of social security contributions can also lead to clarity in court – but this time with the help of the public prosecutor and criminal judge for evasion of social security contributions.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
by courtesy of
www. experten.de (published on 11.11.2019)
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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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