Open letter from Mr. Fiala, lawyer, to the sales manager of Deutsche BAV, Mr. Schwaiger, with a statement on the published info letter:
Dear Mr. Schwaiger, Sales Manager,
Thank you very much for your letter. I would be pleased to take up your request and suggestion, in particular with a timely continuation on the subject of occupational pension schemes, especially with regard to the insolvency protection of the GGF. I would, of course, always be pleased to receive suggestions and comments from you in the future. I will be happy to respond to your letter today – I consider the enclosure to be well formulated, even if its content is not complete: Sales documents are of course often not problem-oriented. You write that “the judgment refers to a revocable pledge”: This is obviously incorrect ! For tax reasons in particular, it is not the pledge that is revocable, but at most a subscription right of the GGF to the reinsurance policy of the VN (usually a GmbH). The insolvency administrator had also not revoked any subscription right – he had only terminated the reinsurance policy, with the (legally automatic) consequence that the subscription right is deemed to have been revoked (this can be read in the BGH ruling with reference to a reference in the ALB). However, the real problems of insolvency protection for the GGF at PZ lie elsewhere, hidden much deeper. I first became aware of this through various rulings and dissertations: 1. the motive of the pledge (which hopefully will never be revocable) is to provide security in the event of bankruptcy or insolvency proceedings: thus, according to academic opinion, the pledge by the insolvency administrator is also contestable; cf. RG in JW 1932, 1655; BGH in BGHZ 26, 185 (193). 2) Most GGF guarantee the debts of the GmbH with credit institutions: The credit institution and other creditors of the GGF can (if the pledge is not contested by the insolvency administrator) fully access the money in the reinsurance policy. This is often economically and fiscally damaging. 3. the cancellation of the reinsurance by the insolvency administrator can be disadvantageous, inter alia – through conceivable cancellation deductions on the part of the insurer, – through the omission of an insurance-like reinsurance for “disability and death protection”, – poorer profitability of the money outside the reinsurance (e.g. in the case of deposit), – … The approach to solving these problems lies in the strict separation between the commitment on the one hand and the reinsurance of a PZ on the other. I would appreciate it if you could briefly send me your insights and opinion on this topic – I would then also be happy to take this into account for the next post. Richard Widmark once said “Nothing makes a man so intolerable as the consciousness of having enough money for a good lawyer.” In this spirit, I remain with kind regards Johannes Fiala, RA, MM, MBA Fiala | Freiesleben & Weber Attorney at Law, Patent Attorney, Tax Consultant, Certified Public Accountant De-la-Paz-Str.37 80639 Munich/Nymphenburg